BRB No. 02-0286 BLA
DONALD LEE ADDISON )
)
Claimant-Petitioner )
)
v. )
)
JEWELL RIDGE COAL COMPANY )
SEA "B" MINING COMPANY )
)
and )
)
ACORDAI EMPLOYERS SERVICES )
CORPORATION )
) DATE
ISSUED:08/23/2002 Employer/Carrier-Respondents )
) DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Edward Terhune Miller,
Administrative Law Judge, United States Department of Labor.
Donald Lee Addison, Cedar Bluff, Virginia, pro se.
Timothy W. Gresham (Penn, Stuart & Eskridge), Abingdon, Virginia, for employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant, without the assistance of counsel,[1]
appeals the Decision and Order (2000-BLA-700) of Administrative Law Judge Edward
Terhune Miller 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).[2] The
administrative law judge, after determining that the instant case was a duplicate
claim, noted the proper standard and found a material change in conditions
established pursuant to 20 C.F.R. §725.309 (2000) as the newly submitted
evidence of record established the existence of a totally disabling respiratory
impairment.[3] Decision and Order at 3, 6, 9, 13.
The administrative law judge found, and the parties stipulated to, at least twenty-six years of coal mine employment and, based on the date of filing, the
administrative law judge adjudicated the claim pursuant to 20 C.F.R. Part 718.
Decision and Order at 4, 13. Considering the evidence of record de novo,
the administrative law judge determined that claimant failed to establish the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a). Decision and
Order at 14-15. Accordingly, benefits were denied. On appeal, claimant generally
contends that the administrative law judge erred in failing to award benefits. Employer responds urging affirmance of the
administrative law judge's Decision and Order as supported by substantial evidence. The Director, Office of Workers'
Compensation Programs, has filed a letter indicating that he will not participate in this appeal.[4]
In an appeal filed by a claimant without the assistance of counsel, the Board
will consider 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). If the findings of fact and conclusions
of law of the administrative law judge 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 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 filed
pursuant to 20 C.F.R. Part 718, claimant must establish the existence of
pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that
the pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202,
718.203, 718.204; Gee v. W.G. Moore and Sons, 9 BLR 1-4 (1986)(en
banc). Failure to establish any one 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).
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
Decision and Order of the administrative law judge is supported by substantial
evidence and that there is no reversible error contained therein.[5] The administrative law judge, in the instant
case, permissibly acted within his discretion in concluding that the evidence of
record was insufficient to establish the existence of pneumoconiosis pursuant to
Section 718.202(a). Kuchwara v. Director, OWCP, 7 BLR 1-167 (1984);
Piccin v. Director, OWCP, 6 BLR 1-616 (1983). The administrative law
judge rationally found that the evidence of record was insufficient to establish
the existence of pneumoconiosis at Section 718.202(a)(1) as the preponderance of
the x-ray readings by physicians with superior qualifications was negative.
Director's Exhibits 16, 17, 30, 31; Employer's Exhibits 1, 2, 4-7, 17-42; Decision
and Order at 14; Adkins v. Director, OWCP, 958 F.2d 49, 16 BLR 2-61 (4th
Cir. 1992); Warhach v. Director, OWCP, 17 BLR 1-105 (1993); Edmiston v. F & R Coal
Co., 14 BLR 1-65 (1990); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149
(1989)(en banc). We, therefore, affirm the administrative law judge's
finding that the x-ray evidence is insufficient to establish the existence of
pneumoconiosis pursuant to Section 718.202(a)(1) as it is supported by substantial
evidence.
Further, we affirm the administrative law judge's finding that the claimant
failed to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(2) since the record does not contain any biopsy results
demonstrating the presence of pneumoconiosis. Decision and Order at 14.
Additionally, we affirm the administrative law judge's finding that the evidence
of record is insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(3) since none of the presumptions set forth therein are applicable
to the instant claim.[6] See 20 C.F.R.
§§718.304, 718.305, 718.306; Decision and Order at 14; Langerud v.
Director, OWCP, 9 BLR 1-101 (1986).
With respect to 20 C.F.R. §718.202(a)(4), the administrative law judge
properly noted the entirety of the medical opinion evidence of record and
rationally considered the quality of the evidence in determining whether the
opinions of record are supported by the underlying documentation and adequately
explained, and acted within his discretion as fact-finder, in according greater
weight to the opinions of Drs. Iosif and Fino, than to the remaining medical
opinion evidence, as these physicians most thoroughly and directly addressed the
issue of pneumoconiosis and in light of their superior qualifications. See
Malcomb v. Island Creek Coal Co., 15 F.3d 364, 18 BLR 2-113 (4th Cir. 1994);
Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 7 BLR 2-72 (4th Cir.
1984); Collins v. J & L Steel, 21 BLR 1-181 (1999); Trumbo v. Reading
Anthracite Co., 17 BLR 1-85 (1993); Lafferty v. Cannelton Industries,
Inc., 12 BLR 1-190 (1989); Clark, supra; Dillon v. Peabody Coal
Co., 11 BLR 1-113 (1988); Fields v. Island Creek Coal Co., 10 BLR 1-19
(1987); Perry, supra; Stark v. Director, OWCP, 9 BLR 1-36 (1986);
King v. Consolidation Coal Co., 8 BLR 1-262 (1985); Hall v. Director,
OWCP, 8 BLR 1-193 (1985); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985);
Kuchwara, supra; Decision and Order at 14; Director's Exhibits 12-14, 31;
Claimant's Exhibits 3, 4; Employer's Exhibits 3, 8-11, 14-16, 43, 48-50. The
administrative law judge, in this instance, permissibly accorded greatest weight
to the opinion of Dr. Fino, that the miner did not suffer from pneumoconiosis and
that his impairment is unrelated to coal mine dust exposure, as his opinion is
reasoned, documented, unequivocal and supported by the objective evidence of
record. See Worhach, supra; Clark, supra; Dillon, supra;
Gee, supra; Perry, supra; Wetzel, supra; Lucostic v. United
States Steel Corp., 8 BLR 1-46 (1985); Pastva v. The Youghiogheny and Ohio
Coal Co., 7 BLR 1-829 (1985); Decision and Order at 15; Employer's Exhibit 3.
Moreover, the administrative law judge acted within his discretion as fact-finder
in concluding that the opinion by Dr. Iosif, with respect to the existence of
pneumoconiosis, was equivocal and entitled to diminished weight. Justice v.
Island Creek Coal Co., 11 BLR 1-91 (1988); Campbell v. Director, OWCP,
11 BLR 1-16 (1987); Snorton v. Zeigler Coal Co., 9 BLR 1-106 (1986);
Carpeta v. Mathies Coal Co., 7 BLR 1-145 (1984); Stanley v. Eastern
Associated Coal Corp., 6 BLR 1-1157 (1984); Decision and Order at 14-15;
Director's Exhibits 12, 14; Employer's Exhibits 11, 14, 15. Although, as the
administrative law judge found and the record indicates, Drs. Claustro and Iosif
are claimant's treating physicians, the administrative law judge has provided valid
reasons for finding these opinions entitled to less weight. See Tedesco v.
Director, OWCP, 18 BLR 1-103 (1994); Grizzle v. Pickands Mather and Co.,
994 F.2d 1093, 17 BLR 2-123 (4th Cir. 1993); Clark, supra; Hall,
supra; Wetzel, supra; Kuchwara, supra; Decision and Order at
9-12, 14-15; Director's Exhibits 12, 14; Claimant's Exhibit 3; Employer's
Exhibits 9, 11, 14, 15. Moreover, remand to the administrative law judge for
reconsideration of the evidence under 20 C.F.R. §718.202(a)(1)-(4) in
accordance with the decision by the United States Court of Appeals for the Fourth
Circuit in Island Creek Coal Co. v. Compton, 211 F.3d 203, 22 BLR 2-162 (4th
Cir. 2000), is not necessary, as the administrative law judge properly determined
that the existence of pneumoconiosis was not established under any of the relevant
subsections.[7]
Claimant has the general burden of establishing entitlement and bears the risk
of non-persuasion if his evidence is found insufficient to establish a crucial
element. See Trent, supra; Perry, supra; Oggero v. Director,
OWCP, 7 BLR 1-860 (1985); White v. Director, OWCP, 6 BLR 1-368 (1983).
As the administrative law judge rationally considered all the evidence of record
and properly determined that it was insufficient to establish that the miner
suffered from pneumoconiosis, claimant has not met his burden of proof on all the
elements of entitlement. Clark, supra; Trent, supra; Perry,
supra. The administrative law judge is empowered to weigh the medical evidence
and to draw his own inferences therefrom, see Maypray v. Island Creek
Coal Co., 7 BLR 1-683 (1985), and the Board may not reweigh the evidence or
substitute its own inferences on appeal. See Clark, supra;
Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1988); Worley v.
Blue Diamond Coal Co., 12 BLR 1-20 (1988). Furthermore, since the
determination of whether claimant had pneumoconiosis is primarily a medical
determination, claimant's testimony alone, under the circumstances of this
case, could not alter the administrative law judge's finding. 20 C.F.R.
§718.202(a)(4); Anderson, supra. Consequently, we affirm the
administrative law judge's finding that the evidence of record is insufficient to establish the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a) as it is supported by substantial evidence and is in accordance with law. Decision
and Order at 13-15; Compton, supra; Trent, supra; Perry, supra.
Inasmuch as claimant has failed to establish the existence of pneumoconiosis, a requisite element of entitlement in
a living miner's claim pursuant to 20 C.F.R. Part 718, entitlement thereunder is precluded. See Compton, supra;
Trent, supra; Perry, supra.
Accordingly, the administrative law judge's Decision and Order 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)Ron Carson, a benefits counselor with Stone Mountain Health Services of Vansant, Virginia,
requested, on behalf of claimant, that the Board review the administrative law judge's decision, but Mr. Carson 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, 722, 725 and 726 (2001). All citations to the regulations, unless otherwise noted, refer to the amended
regulations.
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3)The record indicates that claimant filed his initial claim for benefits on October 23, 1978,
which was finally denied on October 4, 1984. Director's Exhibit 30. Claimant took no further action until he filed a second
claim on February 1, 1996, which was denied on April 11, 1996. Director's Exhibit 31. Claimant again took no further
action until he filed a third application for benefits on July 7, 1999, which is the subject of the instant appeal. Director's
Exhibit 1. Consequently, the present claim constitutes a duplicate claim pursuant to 20 C.F.R.§725.309 (2000).
See Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1996), rev'g en
banc, 57 F.3d 402, 19 BLR 2-223 (4th Cir. 1995).
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4) The administrative law judge's length of coal mine employment determination and his findings pursuant to 20 C.F.R.
§§725.309 and 718.204(b) are favorable to claimant and unchallenged on appeal, and therefore are affirmed.
Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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5)This case arises within the jurisdiction of the United States Court of Appeals for the Fourth
Circuit as the miner was employed in the coal mine industry in the Commonwealth of Virginia. See
Director's Exhibits 2, 6; Shupe v. Director, OWCP, 12 BLR 1-200 (1989)(en banc).
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6)The presumption at 20 C.F.R. §718.304 is inapplicable
because there is no evidence of complicated pneumoconiosis in the record. Claimant
is not entitled to the presumption at 20 C.F.R. §718.305 because he filed his
claim after January 1, 1982. See 20 C.F.R. §718.305(e); Director's
Exhibit 1. Lastly, this claim is not a survivor's claim; therefore, the
presumption at 20 C.F.R. §718.306 is also inapplicable.
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7)The United States Court of Appeals for the Fourth Circuit held
that although 20 C.F.R. §718.202(a) (2000) enumerates four distinct methods
of establishing pneumoconiosis, all types of relevant evidence must be weighed
together to determine whether a claimant suffers from the disease. Island Creek
Coal Co. v. Compton, 211 F.3d 203, 22 BLR 2-162 (4th Cir. 2000).
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NOTE: This is an UNPUBLISHED BLA Document.
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