BRB No. 98-0764 BLA
WILMA J. BALLARD
(o/b/o and Widow of WILLIAM E.
BALLARD)
Claimant-Petitioner
v.
WESTMORELAND COAL COMPANY
Employer-Respondent
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-in-Interest )
)
)
)
)
)
)
)
)
) DATE
ISSUED:08/25/1999
)
)
)
)
)
)
)
) DECISION AND ORDER
Appeal of the Decision and Order of Edward J. Murty, Jr.,
Administrative Law Judge, United States Department of Labor.
Wilma J. Ballard, Big Stone Gap, Virginia, pro se.
Douglas A. Smoot (Jackson & Kelly), Charleston, West Virginia, for
employer.
Before: HALL, Chief Administrative Appeals Judge, McGRANERY,
Administrative Appeals Judge, and NELSON, Acting Administrative
Appeals Judge.
PER CURIAM:
Claimant,[1] without the assistance of
counsel,[2] appeals the Decision and Order (97-BLA-1657) of Administrative Law Judge Edward J. Murty, Jr. denying benefits on a
miner's claim and 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). The administrative law judge determined
that this case involves a request for modification of the Decision and Order -
Denying Benefits of Administrative Law Judge John C. Holmes, dated September 23,
1996, pursuant to 20 C.F.R. §725.310.[3]
The administrative law judge found that claimant could not establish a change in
the deceased miner's condition and, therefore, in order to establish
modification, claimant must establish a mistake in a determination of fact.
Reviewing the medical evidence of record, the administrative law judge found
that there was no medical evidence which establishes that the miner was not
capable of performing his usual coal mine employment. 20 C.F.R.
§718.204(c). In addition, the administrative law judge found that the
medical evidence of record was insufficient to establish that the miner's death
was due to pneumoconiosis. 20 C.F.R. §718.205(c). Consequently, the
administrative law judge found the evidence of record insufficient to establish
a mistake in a determination of fact in both the miner's claim and the
survivor's claim. 20 C.F.R. §725.310. Accordingly, the administrative law
judge denied claimant's motion for modification in both the miner's claim and
the survivor's claim. In response to claimant's pro se appeal, employer
urges affirmance of the denial of modification on both the miner's claim and the
survivor's claim. The Director, Office of Workers' Compensation Programs, has
filed a letter stating that he will not file a response brief in this appeal.
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. McFall v. Jewell Ridge Coal Corp.,
12 BLR 1-176 (1989). The Board's scope of review is defined by statute. 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).
Modification may be established under Section 725.310 by a showing of a
change of conditions or a mistake in a determination of fact. In considering
whether a claimant has established a change in conditions, an administrative law
judge must consider all of the newly submitted evidence, in conjunction with the
previously submitted evidence, to determine if the new evidence is sufficient to
establish at least one of the elements of entitlement which defeated entitlement
in the prior decision. Nataloni v. Director, OWCP, 17 BLR 1-82 (1993).
In addition, the United States Court of Appeals for the Fourth Circuit, within
whose jurisdiction the instant case arises, has held that a claimant's general
allegation of error is sufficient to require the administrative law judge to
consider the entire record in addressing whether there was a mistake in a
determination of fact. 20 C.F.R. §725.310; Jessee v. Director,
OWCP, 5 F.3d 723, 18 BLR 2-26 (4th Cir. 1993).
After consideration of the administrative law judge's Decision and Order
and the relevant evidence of record, we conclude that substantial evidence
supports the administrative law judge's denial of claimant's motion for
modification in both the miner's claim and the survivor's claim. Initially, we
affirm the administrative law judge's finding that there was no basis on which
to demonstrate a change in conditions as there can be no change in the deceased
miner's condition, Decision and Order at 2, inasmuch as the miner died on May
10, 1989, before his most recent claim had been denied, see Director's
Exhibits 64, 85, and because claimant was not eligible to file a survivor's
claim until after the miner's death. Consequently, based on the facts of this
case, modification cannot be sustained based upon a change in conditions because
it is not possible for one of the adjudicated conditions to change. See
Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989); see
generally Mullins Coal Company, Inc. of Virginia v. Director, OWCP,
484 U.S. 135, 11 BLR 2-1 (1987) reh'g denied, 484 U.S. 1047 (1988).
Furthermore, we affirm the administrative law judge's determination that
claimant has not established a mistake in a determination of fact in either the
miner's claim or the survivor's claim. With respect to the miner's claim, the
administrative law judge reasonably found that the evidence of record failed to
establish a mistake in a determination of fact with respect to the existence of
total respiratory disability under Section 718.204(c).[4] Decision and Order at 2. A review of the record indicates that
the administrative law judge properly found that the pulmonary function studies
and blood gas studies yielded non-qualifying values[5] and, therefore, are insufficient to demonstrate total disability.[6] Decision and Order at 2; Director's Exhibits
9, 13, 48, 83-85, 87; 20 C.F.R. §718.204(c)(1), (c)(2).
Moreover, the administrative law judge reasonably found that there was no
medical opinion evidence which supports a finding that the miner lacked the
pulmonary capacity to perform his usual coal mine employment. Decision and
Order at 2. A review of the record shows that none of the medical reports opine
that the miner was totally disabled or provide diagnoses from which the
administrative law judge could infer that the miner was not capable of
performing his usual coal mine employment. Director's Exhibits 25, 45, 46, 48,
54-56, 58, 59, 70, 71, 87, 94; see Taylor v. Evans and Gambrel Co.,
Inc., 12 BLR 1-83 (1988); Gee v. W. G. Moore & Sons, 9 BLR 1-4
(1986)(en banc). Consequently, we affirm the administrative law judge's
finding that the medical evidence of record is insufficient to establish total
respiratory disability pursuant to Section 718.204(c) and, thus, a mistake in a
determination of fact. See Taylor, supra; see also Jessee,
supra; Nataloni, supra.
With respect to the survivor's claim, we affirm the administrative law
judge's finding that the medical evidence was insufficient to establish that the
miner's death was due to pneumoconiosis.[7]
Decision and Order at 2. As the administrative law judge correctly found, the
lone opinion supportive of a finding that the miner's death was due to
pneumoconiosis, or that pneumoconiosis was a substantially contributing cause of
the miner's death, was the July 1993 supplemental letter of Dr. Tabor. Decision
and Order at 2; Director's Exhibit 70; see also Director's Exhibits 8,
25, 45, 46, 48, 54-56, 58, 59, 71, 87, 94. However, the administrative law
judge reasonably exercised his discretion as trier-of-fact in finding that Dr.
Tabor failed to explain adequately his 1993 opinion, that pneumoconiosis was a
major contributing cause of the miner's death, particularly, in light of the
doctor's contradictory conclusion, implicit in the miner's death certificate.[8] Decision and Order at 2; compare
Director's Exhibit 70 with Director's Exhibit 7; see Lafferty
v. Cannelton Industries, Inc., 12 BLR 1-190 (1989); Addison v. Director,
OWCP, 11 BLR 1-68 (1988); see also Lucostic v. United States Steel
Corp., 8 BLR 1-46 (1985). Inasmuch as the administrative law judge
reasonably accorded no weight to the opinion of Dr. Tabor, the only evidence
supportive of a finding that the miner's death was due pneumoconiosis, we affirm
the administrative law judge's finding that claimant has failed to establish
that the miner's death was due to pneumoconiosis pursuant to Section 718.205(c).
20 C.F.R. §718.205(c); Lafferty, supra; Addison, supra; see also
Sumner v. Blue Diamond Coal Corp., 12 BLR 1-74 (1988). Moreover, since
the administrative law judge reasonably found that the evidence was insufficient
to establish that the miner's death was due to pneumoconiosis, we affirm his
finding that there was no mistake in a determination of fact pursuant to Section
725.310. See Addison, supra; Sumner, supra; see also Jessee, supra;
Nataloni, supra.
Since claimant has failed to establish either a change in conditions or a
mistake in a determination of fact in this case involving a request for
modification, an award of benefits is precluded in both the miner's claim and
the survivor's claim. See Jessee, supra; Nataloni, supra.
Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1)Claimant is the widow of the miner, William E. Ballard, who
died on May 10, 1989. Director's Exhibit 7. The miner filed his most recent
claim on January 18, 1989. Director's Exhibit 85. Claimant filed her
application for survivor's benefits on January 6, 1990. Director's Exhibit 1.
Both claims are presently pending.
Back to Text
2)Ron Carson, a benefits counselor with Stone Mountain Health
Services of St. Charles, 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).
Back to Text
3)The miner, William E. Ballard, filed his initial application
for benefits on November 20, 1974. Director's Exhibit 83. Administrative Law
Judge Julius A. Johnson, in a Decision and Order dated February 9, 1982, awarded
benefits contingent upon the miner ceasing his coal mine employment within one
year of the Decision and Order. Id. However, the miner did not cease his
coal mine employment and, therefore, benefits were denied on March 20, 1983.
Id.
The miner filed a second claim on December 13, 1985. Director's Exhibit
84. Pursuant to claimant's motion, Administrative Law Judge Nicholas J. Laezza
granted the miner's motion to withdraw the claim on March 17, 1988. Id.
The miner filed his third claim, the current claim, on January 18, 1989.
Director's Exhibit 85. The miner died on May 10, 1989, while his claim was
still pending. Director's Exhibit 7. Claimant, the widow of the miner, filed a
survivor's claim on January 6, 1990. Director's Exhibit 1. The two claims were
consolidated at the January 9, 1992 hearing before Administrative Law Judge John
C. Holmes. See Director's Exhibit 61; see also Director's Exhibit
49. Pursuant to a Decision and Order issued on March 23, 1992, Judge Holmes
denied benefits in both the miner's and survivor's claims. Initially, Judge
Holmes found the autopsy evidence sufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2). However, he found
that the evidence was insufficient to establish a totally disabling respiratory
or pulmonary impairment pursuant to 20 C.F.R. §718.204(c). In addition,
Judge Holmes found that the medical evidence was insufficient to establish that
the miner's death was due to pneumoconiosis pursuant to 20 C.F.R.
§718.205(c). Accordingly, Judge Holmes found that claimant failed to
establish entitlement to benefits in both the miner's claim and her survivor's
claim. Director's Exhibits 64, 85. Claimant appealed Judge Holmes's Decision
and Order - Denying Benefits to the Board. By Order dated June 25, 1992, the
Board acknowledged claimant's appeal, but dismissed the appeal as having been
untimely filed. Ballard v. Westmoreland Coal Co., BRB No. 92-1680 BLA
(June 25, 1992)(Order)(unpub.); Director's Exhibit 67.
Claimant filed a request for modification on July 29, 1992. Director's
Exhibit 68. In a Decision and Order - Denying Benefits issued on September 23,
1996, Judge Holmes denied claimant's request for modification finding that the
newly submitted evidence was insufficient to establish entitlement to benefits.
Director's Exhibit 88. In particular, Judge Holmes found that the credible new
evidence supported the findings in his previous decision. Id. Claimant
filed her current request for modification on December 30, 1996. Director's
Exhibit 89.
Back to Text
4)As the administrative law judge correctly noted, Judge
Holmes, in his 1992 Decision and Order, found the existence of pneumoconiosis
established by the autopsy evidence pursuant to Section 718.202(a)(2). Decision
and Order at 2; see Director's Exhibits 64, 85.
Back to Text
5)A "qualifying" pulmonary function study or blood gas study
yields values that are equal to or less than the appropriate values set out in
the tables at 20 C.F.R. Part 718, Appendices B, C, respectively. A "non-qualifying" study exceeds those values. See 20 C.F.R.
§718.204(c)(1), (c)(2).
Back to Text
6)Additionally, the record is devoid of evidence of cor
pulmonale with right sided congestive heart failure and, therefore, claimant has
not demonstrated a total respiratory disability pursuant to Section
718.204(c)(3), as a matter-of-law. 20 C.F.R. §718.204(c)(3); see
Newell v. Freeman United Coal Mining Co., 13 BLR 1-37 (1989), rev'd on
other grounds, 933 F.2d 510, 15 BLR 2-124 (7th Cir. 1991).
Back to Text
7)Benefits are payable on a survivor's claim filed on or after
January 1, 1982 only when claimant meets her burden of establishing that the
miner's death was due to pneumoconiosis arising out of coal mine employment,
where pneumoconiosis was a substantially contributing cause of the miner's
death, where death was caused by complications of pneumoconiosis, or where
complicated pneumoconiosis is established. 20 C.F.R. §§718.201,
718.202, 718.203, 718.205(c); Trumbo v. Reading Anthracite Co., 17 BLR
1-85 (1993); Sumner v. Blue Diamond Coal Co., 12 BLR 1-74 (1988);
Neeley v. Director, OWCP, 11 BLR 1-85 (1988). The United States Court of
Appeals for the Fourth Circuit, within whose jurisdiction this case arises, has
held that if pneumoconiosis hastens death in any way, it is a substantially
contributing cause of death pursuant to Section 718.205(c)(2). Shuff v. Cedar
Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th Cir. 1992), cert. denied,
113 S.Ct. 969 (1993); see generally Lukosevicz v. Director, OWCP,
888 F.2d 1001, 13 BLR 2-100 (3d Cir. 1989).
Back to Text
8) On the death certificate, Dr. Tabor stated that the
immediate cause of the miner's death was pneumonia, due to common variable
immunodeficiency, with other significant conditions being the miner's cancer of
the stomach. Director's Exhibit 7. He did not mention pneumoconiosis.
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document
|
