BRB No. 98-1000 BLA


PHYLLIS J. YOUNG 
(Widow of LESTER J. YOUNG)

                 Claimant-Petitioner

          v.

SEWELL COAL COMPANY

                 Employer-Respondent

DIRECTOR, OFFICE OF WORKERS' 
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

                 Party-in-Interest)
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ISSUED:08/26/1999 

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)    DECISION AND ORDER
     Appeal of the Decision and Order Denying Benefits of Jeffrey Tureck,
     Administrative Law Judge, United States Department of Labor.

     G. Todd Houck, Mullens, West Virginia, for claimant.

     Mary Rich Maloy (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]  appeals the Decision and Order
Denying Benefits (97-BLA-1438) of Administrative Law Judge Jeffrey Tureck 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).  The administrative law judge credited the miner with
twenty-eight years of coal mine employment and adjudicated this case pursuant to
20 C.F.R. Part 718, based on claimant's September 19, 1996 filing date.  The
administrative law judge noted the procedural history of this claim,
specifically, that the miner had been awarded benefits pursuant to an
application for benefits filed on June 16, 1994.[2]   The administrative law judge found that since the finding of the
existence of pneumoconiosis in the miner's claim was "clearly mistaken", the
only way claimant could establish the existence of pneumoconiosis was if that
finding was binding in the survivor's claim.  However, the administrative law
judge rejected claimant's contention that, based on the finding of the existence
of pneumoconiosis pursuant to 20 C.F.R. §718.202(a) in the miner's claim,
employer was collaterally estopped from relitigating this issue in the
survivor's claim.  Rather, the administrative law judge, citing the Board's
holding in Alexander v. Island Creek Coal Co., 12 BLR 1-44 (1988), found
that there are different standards of proof between a miner's claim and a
survivor's claim and, therefore, the doctrine of collateral estoppel does not
apply.  Considering all of the evidence pursuant to Section 718.202(a), the
administrative law judge found that the autopsy evidence of record was
insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(2).  Noting that the autopsy evidence is the most probative
evidence, the administrative law judge further found that the remaining medical
evidence of record was insufficient to establish the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a)(1) and (a)(4).  Accordingly, the
administrative law judge denied benefits.

     In challenging the administrative law judge's denial of benefits, claimant
contends that the administrative law judge erred in finding that the doctrine of
collateral estoppel is not applicable in this case.  Specifically, claimant
argues that the necessary elements for application of the doctrine of collateral
estoppel have been met and, therefore, the administrative law judge erred in
addressing the issue of the existence of pneumoconiosis pursuant to Section
718.202(a).  Claimant also contends that the evidence of record is sufficient to
establish entitlement to benefits.  In response, employer urges affirmance of
the administrative law judge's denial of benefits, arguing that the
administrative law judge properly found that the doctrine of collateral estoppel
is not applicable in this case.  In addition, employer urges affirmance of the
administrative law judge's finding that the evidence of record is insufficient
to establish the existence of pneumoconiosis pursuant to Section 718.202(a). 
The Director, Office of Workers' Compensation Programs, has filed a letter
stating that he will not file a response brief in this appeal.

     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).

     In the instant case, the administrative law judge rejected claimant's
contention that the doctrine of collateral estoppel precludes employer from
litigating the issue of the existence of pneumoconiosis pursuant to Section
718.202(a).  Specifically, the administrative law judge stated that findings
made in a miner's claim will not be given collateral estoppel effect in a
survivor's claim because a survivor's claim involves different standards of
proof than a miner's claim, citing Alexander, supra.  Decision and Order
at 3.  Consequently, the administrative law judge reviewed the medical evidence
of record and found that it was insufficient to establish the existence of
pneumoconiosis pursuant to Section 718.202(a).  The administrative law judge,
therefore, concluded that because claimant did not establish the existence of
pneumoconiosis, she could not establish that the miner's death was due to
pneumoconiosis pursuant to 20 C.F.R. §718.205(c).

     Claimant challenges the administrative law judge's denial of benefits,
contending that the administrative law judge erred in failing to apply the
doctrine of collateral estoppel to bar employer from relitigating the issue of
the existence of pneumoconiosis pursuant to Section 718.202(a).  In particular,
claimant argues that the necessary elements for application of the doctrine of
collateral estoppel have been met and, therefore, the administrative law judge
erred in addressing the issue of the existence of pneumoconiosis pursuant to
Section 718.202(a).  Claimant's contention has merit.

      Collateral estoppel forecloses "the relitigation of issues of fact or law
that are identical to issues which have been actually determined and necessarily
decided in prior litigation in which the party against whom [issue preclusion]
is asserted had a full and fair opportunity to litigate." Ramsay v. INS,
14 F.3d 206 (4th Cir. 1994); see Virginia Hosp. Ass'n v. Baliles, 830
F.2d 1308 (4th Cir. 1987); see also Freeman v. United Coal Mining Co.
v. Director, OWCP [Forsythe], 20 F.3d 289, 18 BLR 2-189 (7th Cir. 1994). 
For collateral estoppel to apply in the present case, which arises within the
jurisdiction of the United States Court of Appeals for the Fourth Circuit,
claimant must establish that:

     (1)  the issue sought to be precluded is identical to one
          previously litigated;
     (2)  the issue was actually determined in the prior proceeding;
     (3)  the issue was a critical and necessary part of the judgment
          in the prior proceeding;
     (4)  the prior judgment is final and valid; and
     (5)  the party against whom estoppel is asserted had a full and
          fair opportunity to litigate the issue in the previous
          forum.

See Sedlack v. Braswell Services Group, Inc., 134 F.3d 219 (4th Cir.
1998); Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332 (4th Cir.
1992); Ramsay, supra.  Based on the facts of this case, the doctrine of
collateral estoppel is applicable in this case regarding the existence of
pneumoconiosis pursuant to Section 718.202(a), inasmuch as each of the
prerequisites for application of the doctrine is present. See Hughes
v. Clinchfield Coal Co., 21 BLR 1-134 (1999); see generally Trumbo
v. Reading Anthracite Co., 17 BLR 1-85 (1993).      

     Initially, contrary to the administrative law judge's statement of the
issue, the standards of proof regarding the existence of pneumoconiosis are
identical in a living miner's claim filed under Part 718 and a survivor's claim
filed under Part 718, inasmuch as claimant, in either a living miner's case or a
survivor's case, must establish the existence of pneumoconiosis pursuant to any
of the methods available at Section 718.202(a) in order to establish entitlement
to benefits. See 20 C.F.R. §§718.201, 718.202(a); Trumbo,
supra; Neeley v. Director, OWCP, 11 BLR 1-85 (1988); Dixon v.
North Camp Coal Co., 8 BLR 1-344 (1985).  Thus, the issue that claimant
seeks to preclude in the present case is identical to the one previously
litigated.  Moreover, the finding of the existence of pneumoconiosis pursuant to
Section 718.202(a)(4) rendered in the miner's claim, see Director's
Exhibit 29, was a necessary element of entitlement in the miner's claim and,
thus, was essential to the judgment of benefits.  20 C.F.R. §§718.3,
718.202, 718.203, 718.204; Trent v. Director, OWCP, 11 BLR 1-26 (1987);
Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en banc); see
generally N.L.R.B v. Master Slack and/or Master Trousers, 773 F.2d
77, 81 (6th Cir. 1985)( a factual issue is  necessarily decided' for issue
preclusion purposes if its determination was necessary to support the judgment
entered in the prior proceeding).  In addition, the decision in the miner's
claim became a final and valid judgment following the Board's affirmance of the
award of benefits in the miner's claim, of which employer did not seek further
review.  See Young v. Sewell Coal Co., BRB No. 96-1628 BLA (July
18, 1997)(unpub.).  Lastly, as the miner died during the pendency of his claim,
the formal record of the miner's claim included evidence from his autopsy as
well as reviews of this evidence obtained by employer. See Director's
Exhibits 27, 29.  Employer, therefore, was provided a full and fair opportunity
to litigate this issue inasmuch as the record in the survivor's claim does not
contain any autopsy evidence which was not available and could not have been
adduced at the time of the adjudication of the miner's claim. See Hughes,
supra.

     Consequently, under the facts of this case, we reverse the administrative
law judge's finding that the doctrine of collateral estoppel is not applicable
inasmuch as all the elements of collateral estoppel have been met.  We hold,
therefore, that employer is barred from relitigating the issue of the existence
of pneumoconiosis pursuant to Section 718.202(a). Id.  Moreover, we
remand the case to the administrative law judge to determine whether the
relevant evidence of record is sufficient to establish that the miner's death
was due to pneumoconiosis pursuant to Section 718.205(c), including whether
pneumoconiosis hastened, in any way, the miner's ultimate demise.[3]   20 C.F.R. §718.205(c); Shuff v. Cedar
Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th Cir. 1992), cert. denied,
113 S.Ct. 969 (1993); Trumbo, supra; Neeley, supra.

     Accordingly, the administrative law judge's Decision and Order Denying
Benefits is reversed in part, vacated in part and the case is remanded to the
administrative law judge for further proceedings consistent with this opinion. 

     SO ORDERED.





                                 
                        
BETTY JEAN HALL, Chief
Administrative Appeals Judge



                                 
                        
REGINA C. McGRANERY
Administrative Appeals Judge



                                 
                      
MALCOLM D. NELSON, Acting
Administrative Appeals Judge


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Footnotes.
 1) Claimant is the widow of the miner, Lester J. Young, who
died on September 27, 1995.  Director's Exhibit 8.  Claimant filed a survivor's
claim on September 19, 1996.  Director's Exhibit 1.  The survivor's claim is the
only case currently before the Board. 
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 2) In a Decision and Order issued August 14, 1996,
Administrative Law Judge Daniel L. Leland awarded benefits in the miner's claim,
crediting the miner with thirty-nine years of coal mine employment and finding
the evidence sufficient to establish the existence of pneumoconiosis arising out
of coal mine employment pursuant to 20 C.F.R. §§718.202(a)(4) and
718.203(b).  Additionally, Judge Leland found the evidence sufficient to
establish total respiratory disability due, at least in part, to the miner's
pneumoconiosis pursuant to 20 C.F.R. §718.204(b) and (c).  Director's
Exhibit 29.  The Board, in a Decision and Order issued on July 18, 1997,
affirmed the administrative law judge's award of benefits in the miner's claim.
Young v. Sewell Coal Co., BRB No. 96-1628 BLA (July 18, 1997)(unpub.). 
No further appeal was taken.
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 3) 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 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).

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