BRB No. 98-1429 BLA
PEARL H. HUGHES )
(Widow of DELMAR W. HUGHES) )
)
Claimant-Petitioner )
)
v. )
)
CLINCHFIELD COAL COMPANY ) DATE ISSUED:08/20/1999
)
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Richard A. Morgan, Administrative
Law Judge, United States Department of Labor.
Pearl H. Hughes, Coeburn, Virginia, pro se.
Timothy W. Gresham (Penn, Stuart & Eskridge), Abingdon, Virginia, for
employer.
Before: HALL, Chief Administrative Appeals Judge, McGRANERY, Administrative Appeals Judge, and
NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant,[1] representing herself, appeals the
Decision and Order (97-BLA-1318) of Administrative Law Judge Richard A. Morgan
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). The instant case involves a survivor's claim filed on December 21,
1995.[2] The administrative law judge found the evidence insufficient
to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4). The administrative law
judge also 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 generally
contends that the administrative law judge erred in denying benefits. Employer responds in support of
the administrative law judge's denial of benefits. The Director, Office of
Workers' Compensation Programs, has not filed a response brief.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue to be whether the Decision and Order below is supported by
substantial evidence. Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must
affirm the findings of the administrative law judge if they are supported by
substantial evidence, are rational, and are in accordance with applicable law. 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).
Benefits are payable on survivor's claims filed on or after January 1, 1982
only when the miner's death is due to pneumoconiosis.[3] See 20 C.F.R. §§718.1, 718.205(c); Neeley v.
Director, OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP, 11 BLR 1-39
(1988). However, before any finding of entitlement can be made in a survivor's
claim, a claimant must establish the existence of pneumoconiosis pursuant to 20
C.F.R. §718.202(a)(1)-(4). Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993). A claimant must also establish that the miner's pneumoconiosis arose
out of coal mine employment pursuant to 20 C.F.R. §718.203. Boyd,
supra.
In determining whether the x-ray evidence of record was sufficient to
establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1), the administrative law judge properly accorded greater weight
to the interpretations rendered by B readers and/or Board-certified radiologists.
See Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985). Of the
twenty-eight x-ray interpretations rendered by physicians with these
qualifications, only four are positive for pneumoconiosis. Director's Exhibits 19,
24; Employer's Exhibits 4-7. The administrative law judge, therefore, properly
found that "an overwhelming number of the best qualified interpreters found the x-rays negative." Decision and Order at 14. The administrative law judge also noted
that all of the interpretations of the miner's most recent x-rays, films taken
between October 18, 1993 and June 10, 1995, are negative for pneumoconiosis.
Id.; Director's Exhibits 10, 12, 19; Employer's Exhibits 4-7. Inasmuch as
it is supported by substantial evidence, we affirm the administrative law judge's
finding that the x-ray evidence is insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1).
In his consideration of whether the autopsy evidence was sufficient to
establish the existence of pneumoconiosis, the administrative law judge noted that
while Dr. Tucker, the autopsy prosector, diagnosed pneumoconiosis, his
qualifications are not found in the record. Decision and Order at 15; Director's
Exhibit 9. The administrative law judge accorded greater weight to the opinions
of Drs. Jones, Naeye and Caffrey based upon their superior qualifications.[4] See Dillon v. Peabody Coal Co., 11 BLR
1-113 (1988); Decision and Order at 15. While Dr. Jones diagnosed pneumoconiosis,
Claimant's Exhibit 1, Drs. Naeye and Caffrey opined that the miner did not suffer
from pneumoconiosis. Director's Exhibit 13; Employer's Exhibit 1. The
administrative law judge noted that Drs. Tomashefski and Fino also opined that the
miner did not suffer from pneumoconiosis. Decision and Order at 15; Employer's
Exhibits 2, 9, 11. The administrative law judge noted that while Dr. Fino is not
a pathologist, he is a pulmonary specialist.[5]
Decision and Order at 15. The administrative law judge found that while Dr. Jones'
opinion supported a finding of pneumoconiosis, it was outweighed by the contrary
opinions of Drs. Naeye, Caffrey, Tomashefski and Fino. Id. The
administrative law judge, therefore, found that the autopsy evidence was
insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(2). Id.
While Dr. Naeye's qualifications are not found in the record, the record
indicates that Dr. Tomashefski is a Board-certified pathologist. See
Employer's Exhibit 2. Dr. Tomashefski, like Drs. Naeye and Caffrey, found that the
autopsy evidence did not reveal the presence of pneumoconiosis. The administrative
law judge also noted that Dr. Fino, a physician Board-certified in Internal
Medicine and Pulmonary Disease, reviewed the evidence of record, and opined that
the miner did not suffer from pneumoconiosis. Inasmuch as a majority of the best
qualified pathologists opined that the miner did not suffer from pneumoconiosis,
an opinion also supported by Dr. Fino, a Board-certified Internist, we affirm the
administrative law judge's finding that the autopsy evidence is insufficient to
establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(2).
The administrative law judge properly found that the statutory presumptions
set out at 20 C.F.R. §718.202(a)(3) are not applicable in the instant case.
Because there is no evidence of complicated pneumoconiosis in the record, the
Section 718.304 presumption is inapplicable. See 20 C.F.R. §718.304.
The Section 718.305 presumption is similarly inapplicable because claimant filed
the instant claim after January 1, 1982. See 20 C.F.R. §718.305(e).
Finally, inasmuch as the miner died after March 1, 1978, the Section 718.306
presumption is inapplicable. See 20 C.F.R. §718.306.
In his consideration of whether the medical opinion evidence was sufficient
to establish the existence of pneumoconiosis, the administrative law judge noted
that while Drs. Kanwal, Modi, Hess and Fintel diagnosed pneumoconiosis, Drs.
Sargent, Fino and Castle did not. Decision and Order at 15; Director's Exhibits 19, 24;
Employer's Exhibits 9-11. The administrative law judge properly concluded that Dr.
Fino's opinion that the miner did not suffer from pneumoconiosis was entitled to
additional weight based upon his superior qualifications.[6] See Dillon v. Peabody Coal Co., 11 BLR 1-113 (1988); Decision
and Order at 16; Employer's Exhibits 9-11. The administrative law judge also properly credited the
opinions of Drs. Sargent and Fino that the miner did not suffer from pneumoconiosis because he found that they were
based upon more comprehensive documentation. See Sabett v. Director, OWCP, 7 BLR 1-299
(1984); Decision and Order at 16. The administrative law judge also noted that the opinions
of Drs. Sargent and Fino were supported by Dr. Castle's opinion. Decision and
Order at 16; Employer's Exhibit 10. Inasmuch as it is supported by substantial
evidence, we affirm the administrative law judge's finding that the medical opinion
evidence is insufficient to establish the existence of pneumoconiosis pursuant to
20 C.F.R. §718.202(a)(4).[7]
In light of our affirmance of the administrative law judge's findings
that the evidence is insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4), we need not
address the administrative law judge's finding that the evidence was
insufficient to establish that the miner's death was due to pneumoconiosis
pursuant to 20 C.F.R. §718.205(c). Larioni v. Director, OWCP,
6 BLR 1-1276 (1984).
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
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Footnotes.
1)Claimant is the surviving spouse of the deceased miner
who died on June 23, 1995. Director's Exhibit 8.
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2)The miner filed a claim on June 21, 1973. Director's
Exhibit 24. The Social Security Administration [SSA] denied the claim on
July 12, 1973. Id. After the miner elected SSA review of his
claim, the SSA denied the claim again on May 9, 1979. Id. The
Department of Labor denied the claim on June 16, 1978. Id. There
is no indication that the miner took any further action in regard to his
1973 claim.
The miner filed a second claim on January 17, 1984. By Decision and
Order dated January 20, 1988, Administrative Law Judge Melvin Warshaw
found, inter alia, that the x-ray evidence was insufficient to
establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1). Director's Exhibit 24. Judge Warshaw also found
that the evidence was insufficient to establish total disability pursuant
to 20 C.F.R. §718.204(c)(1)-(4). Id. Accordingly, Judge
Warshaw denied benefits. Id. On January 28, 1988, Judge Warshaw
issued an Errata Order wherein he noted that a paragraph indicating that
the evidence was insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2)-(4) had been
inadvertently omitted from his January 20, 1988 Decision and Order.
There is no indication that the miner took any further action in regard
to his 1984 duplicate claim.
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3)Claimant filed the instant survivor's claim on December
21, 1995. Director's Exhibit 1.
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4)Drs. Jones and Caffrey are Board-certified in
Anatomical and Clinical Pathology. Claimant's Exhibit 1; Employer's
Exhibit 1. Dr. Naeye's qualifications are not found in the record.
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5)Dr. Fino is Board-certified in Internal Medicine and
Pulmonary Diseases. Employer's Exhibit 11.
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6)Dr. Fino is Board-certified in Internal Medicine and
Pulmonary Diseases. Employer's Exhibit 11. The qualifications of Drs.
Kanwal, Modi, Hess and Fintel are not found in the record.
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7)Inasmuch as the administrative law judge provided a
proper basis for crediting the opinions of Drs. Sargent and Fino, the
Board need not address the reasons which the administrative law judge
provided for discrediting the opinions of Drs. Kanwal, Modi, Hess and
Fintel. See Kozele v. Rochester and Pittsburgh Coal Co., 6
BLR 1-378 (1983).
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NOTE: This is an UNPUBLISHED BLA Document.
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