BRB No. 98-1431 BLA
ORRIS GRIFFITH )
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Claimant-Petitioner )
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v. ) DATE ISSUED:08/04/1999
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HARMAN MINING CORPORATION )
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and )
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OLD REPUBLIC INSURANCE COMPANY )
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Employer/Carrier- )
Respondents )
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DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Thomas F. Phalen, Jr., Administrative Law Judge,
United States Department of Labor.
Orris Griffith, Mouthcard, Kentucky, pro se.
Gregory S. Feder (Arter & Hadden LLP), Washington, D.C., for employer/carrier.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON, Acting Administrative
Appeals Judge.
PER CURIAM:
Claimant, representing himself, appeals the Decision and Order Denying Benefits (98-BLA-0007) of
Administrative Law Judge Thomas F. Phalen, Jr. 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
involves a duplicate claim filed on September 16, 1996.[1] In his
Decision and Order dated July 24, 1998, the administrative law judge determined that the evidence associated with
claimant's duplicate claim was insufficient to establish total disability pursuant to 20 C.F.R. §718.204(c). The
administrative law judge found, therefore, that claimant failed to establish a material change in conditions under 20
C.F.R. §725.309. 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 decision denying benefits. The Director, Office of Workers' Compensation Programs, has filed a letter
indicating he does not intend to participate presently in the proceedings on appeal.
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).
In order to establish entitlement to benefits under Part 718 in a living miner's claim, a 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. Failure to establish
any one of these elements precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Gee
v. W.G. Moore and Sons, 9 BLR 1-4 (1986)(en banc); Perry v. Director, OWCP, 9 BLR
1-1 (1986)(en banc).
Section 725.309 provides that a duplicate claim is subject to automatic denial on the basis of the prior denial
unless there is a determination of a material change in conditions since the denial of the prior claim. 20 C.F.R.
§725.309. The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction the instant case
arises, has held in Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227
(4th Cir. 1996), rev'g en banc, 57 F.2d 402, 19 BLR 2-223 (4th Cir. 1995), that in addressing whether the
material change in conditions requirement of Section 725.309(d) has been satisfied, an administrative law judge must
consider all of the new evidence, favorable and unfavorable, and determine whether the miner has proven at least one
of the elements of entitlement previously adjudicated against him. See also LaBelle Processing Co. v.
Swarrow, 72 F.3d 308, 20 BLR 2-76 (3d Cir. 1995); Sharondale Corp. v. Ross, 42 F.3d 993, 19
BLR 2-10 (6th Cir. 1994). In the instant case, the administrative law judge properly noted that the previous
claim was finally denied, by Administrative Law Judge J. Michael O'Neill in the prior Decision and Order dated August
27, 1993, on the basis that claimant failed to establish total disability due to pneumoconiosis under Section 718.204.
Decision and Order at 6-7. Consequently, the administrative law judge considered whether the newly submitted evidence
was sufficient to establish total disability pursuant to Section 718.204(c)(1)-(4).
The administrative law judge's finding that the newly submitted evidence was insufficient to establish total
disability pursuant to 20 C.F.R. §718.204(c) in this case is supported by substantial evidence. The administrative
law judge properly found that three of the four newly submitted pulmonary function studies, as well as both of the newly
submitted arterial blood gas studies of record, were non-qualifying for total disability.[2] Decision and Order at 8-9; Director's Exhibits 15, 17, 36, 41, 45. We, therefore, affirm the
administrative law judge's findings that claimant did not establish total disability pursuant to Section 718.204(c)(1) or
(c)(2) as supported by substantial evidence. See 20 C.F.R. §718.204(c)(1), (2); Gray v. Director,
OWCP, 943 F.2d 512, 15 BLR 2-216 (4th Cir. 1991). Additionally, the administrative law judge properly found
that claimant did not present evidence of cor pulmonale with right sided congestive heart failure. Decision and Order
at 9. We, therefore, affirm the administrative law judge's finding that claimant did not establish total disability under
Section 718.204(c)(3). See 20 C.F.R. §718.204(c)(3).
In considering the new medical opinions under Section 718.204(c)(4), the administrative law judge correctly stated
that Drs. Wells and Musgrave opined that claimant is totally disabled due to pneumoconiosis. Decision and Order at
9-11; Director's Exhibits 39, 45. The administrative law judge further correctly stated that, in contrast, Drs. Fritzhand,
Dahhan and Hippensteel concluded that claimant was not totally disabled from a pulmonary or respiratory standpoint.
Decision and Order at 10-11; Director's Exhibits 16, 36; Employer's Exhibits 1, 2. The administrative law judge
properly credited the opinions of Drs. Fritzhand, Dahhan and Hippensteel on the basis that they were well-reasoned and
documented. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Tackett
v. Cargo Mining Co., 12 BLR 1-11 (1988)(en banc); Decision and Order at 11; Director's Exhibits
16, 36; Employer's Exhibits 1, 2. In reaching this conclusion, the administrative law judge found that Drs. Dahhan and
Hippensteel reviewed the medical evidence of record, thereby providing them with the broadest base of information upon
which to draw their conclusions. Decision and Order at 11; Employer's Exhibits 1, 2. The administrative law judge
further found that the opinions of Drs. Dahhan, Hippensteel and Fritzhand were supported by the pulmonary function
studies and arterial blood gas studies associated with the duplicate claim. Decision and Order at 11; Director's Exhibits
15-17, 36, 41; Employer's Exhibits 1, 2.
In discounting the opinions of Drs. Wells and Musgrave, the administrative law judge found that these
opinions were not well-reasoned or documented because Dr. Wells considered a smoking history which
was less than half of the twenty-one year smoking history to which claimant testified at his hearing, and Dr. Musgrave
evidently assumed that claimant had no smoking history at all, noting only that claimant was a non-smoker. Decision
and Order at 11; Director's Exhibits 39, 45; 1998 Hearing Transcript at 20. The administrative law judge also
discredited the opinions of Drs. Wells and Musgrave under Section 718.204(c) because neither doctor
considered an arterial blood gas study. Decision and Order at 11. Any error the
administrative law judge made in discrediting the reports of Drs. Wells and
Musgrave is harmless as the administrative law judge properly credited the contrary
opinions of Drs. Dahhan, Hippensteel and Fritzhand for the reasons discussed
supra, and further properly accorded greatest weight to the opinions of Drs. Dahhan and Hippensteel in
particular because these physicians possess greater expertise in the area of pulmonary disease.[3] See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 21
BLR 2-269 (4th Cir. 1997); Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985); Kozele v.
Rochester and Pittsburgh Coal Co., 6 BLR 1-1276 (1984); Decision and Order at 11; Employer's Exhibits 1, 2.
We, therefore, affirm the administrative law judge's finding that the newly submitted medical opinion evidence was
insufficient to establish total disability under Section 718.204(c)(4).
Inasmuch as the administrative law judge properly found that the newly submitted evidence was insufficient to
establish total disability pursuant to 20 C.F.R. §718.204(c)(1)-(4), the element of entitlement previously
adjudicated against claimant, we affirm the administrative law judge's finding that claimant failed to establish a material
change in conditions under Section 725.309. See Rutter, supra; see also Ross, supra.
Accordingly, the administrative law judge's Decision and Order Denying benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Claimant filed a previous claim on March 9, 1983. Director's
Exhibit 45. After a hearing was held before Administrative Law Judge W. Ralph
Musgrove on June 17, 1986, Judge Musgrove issued a Decision and Order denying
benefits. Id. In his Decision and Order, dated January 6, 1987, Judge
Musgrove credited claimant with forty years of coal mine employment, and determined
that claimant established the existence of pneumoconiosis under 20 C.F.R.
§718.202(a)(4). Id. Judge Musgrove further found that claimant was
entitled to the presumption that his pneumoconiosis arose out of coal mine
employment pursuant to 20 C.F.R. §718.203(b), and that the evidence was
insufficient to rebut this presumption. Id. Judge Musgrove also determined,
however, that claimant failed to establish total disability under 20 C.F.R.
§718.204(c) and, accordingly, denied benefits. Id. Claimant appealed.
Id. The Board affirmed Judge Musgrove's finding that claimant failed to
establish total disability under Section 718.204(c), and thus affirmed the denial
of benefits. Griffith v. Harman Mining Corp., BRB No. 87-0393 BLA (Sep. 26,
1988)(unpublished).
Subsequently, on June 22, 1989 and July 5, 1989, claimant filed with the
district director requests for modification of the denial of benefits. Director's
Exhibit 45. The district director denied modification, and referred the case to
the Office of Administrative Law Judges (OALJ). Id. The parties filed with
the OALJ a joint motion for a decision on the record, thereby waiving a hearing.
Id. In a Decision and Order dated August 27, 1993, Administrative Law Judge
J. Michael O'Neill stated that he reviewed all of the evidence of record, and found
that the x-ray evidence was sufficient to establish the existence of pneumoconiosis
pursuant to Section 718.202(a)(1). Id. Judge O'Neill further found that the
evidence of record was insufficient to establish total disability under Section
718.204(c). Id. Judge O'Neill, therefore, found that claimant failed to
establish a change in conditions or a mistake in a determination of fact pursuant
to 20 C.F.R. §725.310, and denied benefits. Id. By letter dated
October 12, 1993, claimant forwarded to the district director a medical report from
Dr. Wells, dated September 29, 1993. Id. In a letter dated October 26,
1993, the district director informed claimant that the district director did not
at that time have jurisdiction over the claim, since the claim had been referred
to Judge O'Neill, and the record file had not been transferred back to the district
director's office. Id. The district director advised claimant to correspond
with the OALJ, but notified claimant that he (the district director) retained a
copy of Dr. Wells's report for his records. Id. The record reflects that
claimant took no further action in pursuit of benefits until filing the instant
duplicate claim on September 16, 1996. Director's Exhibit 1. A hearing was held
before the administrative law judge on April 7, 1998, at which Dr. Wells's report,
together with all of the previously submitted evidence, was admitted into the
record at Director's Exhibit 45.
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2)A "qualifying" pulmonary function study or arterial blood gas
study yields values which are equal to or less than the applicable table values set
forth in Appendices B and C of Part 718. See 20 C.F.R. §718.204(c)(1)
and (c)(2). A "non-qualifying" test yields values which exceed the requisite table
values.
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3)The administrative law judge correctly found that Drs. Dahhan
and Hippensteel are Board-certified in internal medicine with a subspecialty in
pulmonary diseases. Decision and Order at 10-11; Employer's Exhibits 1, 2. The
record does not reflect that Drs. Wells and Musgrave possess similar
qualifications.
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NOTE: This is an UNPUBLISHED BLA Document.
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