BRB No. 98-1415 BLA

EDWARD J. VELASQUEZ           )    
                                   )
          Claimant-Respondent      )
                                   )
     v.                            )    DATE ISSUED:08/02/1999            
    
                                   )
WYOMING FUEL COMPANY               )
                         )
     and                           )
                         )
LIBERTY MUTUAL INSURANCE      )
COMPANY                            )
                         )
          Employer/Carrier-             )
          Petitioners                   )
                         )    
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                                   )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of Daniel J. Roketenetz,
     Administrative Law Judge, United States Department of Labor.

     M. Paula Ashen (Baroway, Dawson & Ashen, P.C.), Englewood, Colorado, for
     claimant.

     Scott M. Busser (Zarlengo, Mott, Zarlengo and Winbourn, P.C.), Denver,
     Colorado, for employer.

     Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order on Remand (93-BLA-165) of
Administrative Law Judge Daniel J. Roketenetz awarding 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).  This case
is on appeal to the Board for the third time.  In the original Decision and Order,
Administrative Law Judge Bernard J. Gilday, Jr., credited claimant with twenty-six
and three-quarters years of coal mine employment and adjudicated this claim
pursuant to 20 C.F.R. Part 718.  The administrative law judge found that the
evidence was insufficient to establish the existence of pneumoconiosis pursuant to
20 C.F.R. §718.202(a)(1)-(4).  Accordingly, benefits were denied.  Claimant
and the Director, Office of Workers' Compensation Programs (the Director), appealed
and in Velasquez v. Wyoming Fuel Co., BRB Nos. 95-1590 BLA and 95-1590 BLA-A
(Jan. 30, 1996) (unpub.), the Board affirmed the administrative law judge's
findings that the existence of pneumoconiosis was not established pursuant to 20
C.F.R. §718.202(a)(1)-(3), but held that the administrative law judge had
mischaracterized Dr. Slonim's statements and erroneously found that the physician's
opinion was biased and hostile to the Act.  Thus, the Board vacated the
administrative law judge's findings pursuant to 20 C.F.R. §718.202(a)(4) and
remanded for further consideration thereunder.

     On remand, the case was reassigned to Administrative Law Judge Gilday who
considered the evidence of record and determined that claimant established totally
disabling pneumoconiosis pursuant to 20 C.F.R. §§718.202(a)(4) and
718.204(b), (c)(2), (4).  Accordingly, benefits were awarded.  Employer appealed
and in Velasquez v. Wyoming Fuel Co., BRB No. 97-0293 BLA (Oct. 29, 1997)
(unpub.), the Board affirmed the administrative law judge's findings that the
existence of pneumoconiosis was established pursuant to 20 C.F.R.
§718.202(a)(4) and that total disability was not established pursuant to 20
C.F.R. §718.204(c)(1), (3).  The Board also held that the administrative law
judge had mischaracterized the blood gas study evidence and thus erred in finding
that all of the blood gas study evidence was qualifying and indicated that claimant
was totally disabled.  Thus, the Board vacated the administrative law judge's
finding pursuant to 20 C.F.R. §718.204(c)(2) and remanded for further
consideration thereunder.  In light of the Board's remand for reconsideration of
the blood gas study evidence, the Board vacated the administrative law judge's
findings pursuant to 20 C.F.R. §718.204(b), (c)(4) as well.  The Board also
approved claimant's counsel's fee request, contingent upon successful prosecution
of the claim.

     On remand, the administrative law judge reconsidered the evidence of record
and found that the preponderance of the blood gas study evidence established total
disability pursuant to 20 C.F.R. §718.204(c)(2) and that the medical opinions
of Drs. Scmidt-Nowara and Slonim established that claimant was totally disabled due
to pneumoconiosis 
pursuant to 20 C.F.R. §718.204(b) and (c)(4).  Accordingly, benefits were
awarded.  In the instant appeal, employer contends that the administrative law
judge erred in his consideration of the blood gas study and medical opinion
evidence and in finding total disability established pursuant to 20 C.F.R.
§718.204(c)(2), (4).  Claimant responds, urging affirmance of the denial of
benefits.  The Director has not participated in this appeal.

     The Board's scope of review is defined by statute.  If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are consistent with applicable law, they are binding
upon the Board and may not be disturbed. 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 order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must establish that he suffers from
pneumoconiosis; that the pneumoconiosis arose out of coal mine employment; and that
the pneumoconiosis is totally disabling. See 20 C.F.R. §§718.3,
718.202, 718.203, 718.204.  Failure of claimant to establish any of these elements
precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry
v. Director, OWCP, 9 BLR 1-1 (1986).

     After consideration of the administrative law judge's Decision and Order on
Remand, 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.  In challenging
the administrative law judge's determination that the blood gas study evidence was
sufficient to establish a totally disabling respiratory impairment, employer
contends that the administrative law judge erred in failing to consider the
sequence of the testing and in finding that the three qualifying resting blood gas
studies outweighed the single nonqualifying exercise blood gas study.  We disagree. 
The administrative law judge initially noted that the resting blood gas studies
administered on January 13, 1992, June 8, 1992 and January 18, 1994 were
qualifying, but that the after exercise blood gas study of January 18, 1994, was
non qualifying.  Decision and Order on Remand at 3.  The administrative law judge
rationally found that the preponderance of this evidence established total
disability in light of the consistency of the qualifying values of the resting
blood gas studies and the margin by which the exercise blood gas study was
nonqualifying.    Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)
(en banc); Decision and Order on Remand at 3-4.  Moreover, blood gas and
pulmonary function studies measure different types of impairment, Whitaker v.
Director, OWCP, 6 BLR 1-983 (1984), and we reject employer's contention that
the administrative law judge was required to give determinative weight to the
nonqualifying pulmonary function studies. See Worley v. Blue Diamond Coal
Co., 12 BLR 1-20 (1988).  In addition, with respect to employer's contentions
regarding the relative qualifications of the physicians, as we stated in our prior
decision, although an administrative law judge may assign greater weight to a
physician's report based on that physician's superior qualifications, he is not
required to do so. Clark, supra; DeFore v. Alabama By-Products
Corp., 12 BLR 1-27 (1988); Worley, supra.  We, therefore, also
reject employer's arguments with respect to the administrative law judge's finding
of total disability pursuant to Section 718.204(c)(4) as employer's contentions are
based primarily on the administrative law judge's findings regarding the blood gas
study evidence. See generally Fields v. Island Creek Coal Co., 10 BLR
1-19 (1987); Shedlock v. Bethlehem Mines Corp. 9 BLR 1-195 (1986), aff'd
on recon. en banc, 9 BLR 1-236 (1987).  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 (1989); Worley, supra.  Consequently, we affirm the
administrative law judge's finding that the evidence in the record as a whole
establishes total disability due to pneumoconiosis pursuant to 20 C.F.R.
§718.204(b), (c) and affirm the award of benefits pursuant to 20 C.F.R. Part
718.  Clark, supra; Wetzel v. Director, OWCP, 8 BLR 1-139
(1985); Lucostic v. United States Steel Corp., 8 BLR 1-146 (1985); Oggero
v. Director, OWCP, 7 BLR 1-860 (1985); Decision and Order on Remand at 4-5.     Accordingly, the Decision and Order on Remand of the administrative law judge
awarding benefits is affirmed.

     SO ORDERED.


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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