BRB No. 98-1448 BLA
ANNA WRAY NAPIER )
(Widow of BILLY GENE NAPIER) )
)
Claimant-Petitioner )
)
v. )
)
BENCO, INCORPORATED ) DATE ISSUED:08/02/1999
)
and )
)
WESTMORELAND COAL COMPANY )
)
Employers-Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order - Denial of Benefits of Richard T.
Stansell-Gamm, Administrative Law Judge, United States Department of
Labor.
Anna Wray Napier, Pennington Gap, Virginia, pro se.
Douglas A. Smoot (Jackson & Kelly), Charleston, West Virginia, for
Westmoreland Coal Company/employer.
Rita Roppolo (Henry L. Solano, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and Michael J. Rutledge, Counsel for Administrative
Litigation and Legal Advice), Washington D.C., for the Director, Office
of Workers' Compensation Programs, United States Department of Labor.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant,[1] without the assistance of
counsel, appeals the Decision and Order - Denial of Benefits (97-BLA-1343) of
Administrative Law Judge Richard T. Stansell-Gamm 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).
Adjudicating this survivor's claim pursuant to 20 C.F.R. Part 718, the
administrative law judge initially credited the miner with twenty-one years and
nine months of qualifying coal mine employment, dismissed Westmoreland Coal Company
as the potential responsible operator, and designated Benco, Incorporated as the
responsible operator. Next, the administrative law judge found that claimant
failed to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1)-(4). Accordingly, the administrative law judge denied
benefits.
On appeal, claimant generally challenges the administrative law judge's denial
of benefits. Employer-Westmoreland Coal Company, responds, urges affirmance of the
denial. Employer-Benco, Incorporated has not filed a response brief in this
appeal. The Director, Office of Workers' Compensation Programs (the Director),
filed a letter responding to this pro se appeal, urging affirmance of the
denial.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue raised to be whether the Decision and Order below is supported
by substantial evidence. McFall v. Jewell Ridge Coal Co., 12 BLR 1-176
(1989). We must affirm the administrative law judge's Decision and Order if the
findings of fact and conclusions of law are rational, supported by substantial
evidence, and in accordance with 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).
After consideration of the Decision and Order and the evidence of record, we
conclude that the administrative law judge's denial of benefits is supported by
substantial evidence, contains no reversible error, and therefore, it is affirmed.
Relevant to Section 718.202(a)(1), the administrative law judge correctly found
that, of the thirty-six x-ray interpretations of fourteen x-ray films of record,
two are positive and thirty-four are negative for the existence of pneumoconiosis.
Director's Exhibits 11, 12, 15-22, 35-37; Employer's Exhibit 3. The administrative
law judge, within a proper exercise of his discretion, found the positive readings
entitled to less weight because these readings were rendered by Dr. Gaziano, who
is a B-reader, whereas the negative interpretations were provided by the remaining
eleven physicians, several of whom are both Board-certified radiologists and B-readers. See 20 C.F.R. §718.202(a)(1); Trent v. Director, OWCP,
11 BLR 1-26 (1987); Dixon v. North Camp Coal Co., 8 BLR 1-344 (1985);
Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985); Decision and Order at
12. Because the administrative law judge properly accorded probative weight to the
negative interpretations and permissibly found that the preponderance of the x-ray
evidence failed to establish the existence of pneumoconiosis at Section
718.202(a)(1), we affirm this determination inasmuch as it is rational and
supported by substantial evidence. See Director, OWCP v. Greenwich
Collieries [Ondecko], 114 S.Ct. 2251, 18 BLR 2A-1 (1994), aff'g sub
nom. Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 17 BLR 2-64 (3d Cir.
1993); Gee v. W.G. Moore & Sons, 9 BLR 1-4 (1986); Decision and Order at 12.
Relevant to Sections 718.202(a)(2), a review of the biopsy evidence reveals
the opinions of three physicians. All three physicians, Drs. Van Buren,
Hansbarger, and Bush, reviewed the pathological slides and opined that the findings
of anthracotic pigmentation were insufficient to warrant the diagnosis of coal
workers' pneumoconiosis.[2] Director's Exhibit
10; Employer's Exhibits 2-4. Inasmuch as the administrative law judge reasonably
found that all three physicians opined that the degree of "black pigmentation"
failed to warrant a diagnosis of pneumoconiosis, we affirm his Section
718.202(a)(2) determination that the preponderance of the biopsy evidence failed
to establish pneumoconiosis. 20 C.F.R. §718.202(a)(2); see Dagnan v. Blue
Diamond Coal Mining Co., 994 F.2d 1536, 1541, 18 BLR 2-203, 2-209 (11th Cir.
1993); Decision and Order at 12. Likewise, we affirm the administrative law
judge's determination that the existence of pneumoconiosis cannot be established
pursuant to Section 718.202(a)(3). The instant survivor's claim was filed on
August 28, 1996, Director's Exhibit 1, therefore, the presumptions set forth in
Sections 718.305 and 718.306 are inapplicable. See 20 C.F.R.
§§718.305, 718.306. Furthermore, the record is devoid of evidence
establishing the presence of complicated pneumoconiosis. See 20 C.F.R.
§718.304; Decision and Order at 8 n.15. Hence, we affirm the administrative
law judge's determinations that claimant failed to establish pneumoconiosis under
Sections 718.202(a)(2) and (a)(3).
Turning to the administrative law judge's consideration of the medical opinion
evidence pursuant to Section 718.202(a)(4), a review of the record reveals that
Drs. Dahhan, Fino, Hansbarger, and Kapaida opined that coal workers' pneumoconiosis
was absent in the deceased miner. Director's Exhibit 37; Employer's Exhibits 1-3.
Dr. Taylor, the miner's treating physician, completed the death certificate and
stated that the cause of the miner's death was renal failure due to diabetes
mellitus. Director's Exhibit 8. The evidence of record also contains a plethora
of hospital records, none of which document the presence of pneumoconiosis in the
deceased miner. Director's Exhibits 9, 34, 35, 37. Inasmuch as the administrative
law judge correctly found that there is no medical opinion of record diagnosing the
existence of clinical pneumoconiosis or pneumoconiosis as defined by the Act, we
affirm the administrative law judge's finding that claimant failed to establish the
existence of pneumoconiosis pursuant to Section 718.202(a)(4). See 20 C.F.R.
§718.201; Handy v. Director, OWCP, 16 BLR 1-73, 1-76 (1990); Decision
and Order at 18-19.
Inasmuch as claimant failed to satisfy her burden of affirmatively
establishing that the miner suffered from coal workers' pneumoconiosis under
Section 718.202(a), a prerequisite to a finding of death due to pneumoconiosis
pursuant to Section 718.205, we affirm the administrative law judge's denial of
benefits as rational and supported by substantial evidence. See Trumbo
v. Reading Anthracite Co., 17 BLR 1-85, 1-87-88 (1993).
Accordingly, the Decision and Order - Denial of Benefits of the administrative
law judge 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, Anna Wray Napier, filed a survivor's claim for
benefits on August 28, 1996. Director's Exhibit 1. Mrs. Napier is the widow of
Billy Gene Napier, the miner, who died on July 26, 1996. Director's Exhibit 8.
The miner originally filed an application for benefits on October 19, 1992.
Director's Exhibit 37. The miner's claim was denied on March 12, 1993 and August
12, 1993. Director's Exhibit 37. There is no evidence of record indicating that
the miner pursued his claim further.
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2) On September 10, 1997, Dr. Fino reviewed Dr.
Hansbarger's pathology report regarding the biopsy slides; consequently, Dr.
Fino opined that his opinion that the miner did not suffer from coal
workers' pneumoconiosis remained unchanged. Employer's Exhibit 3.
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NOTE: This is an UNPUBLISHED BLA Document.
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