BRB No. 98-1533 BLA
JOHN HENRY GUNTRUM, JR. )
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Claimant-Respondent )
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v. )
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CARPENTERTOWN COAL ) DATE ISSUED:08/17/1999
AND COKE COMPANY )
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Employer-Petitioner )
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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 of Michael P. Lesniak, Administrative
Law Judge, United States Department of Labor.
James H. Owen (Calarie and Owen), Kittanning, Pennsylvania, for
claimant.
William J. Walls (Marshall, Dennehey, Warner, Coleman & Goggin),
Pittsburgh, Pennsylvania, for employer.
Before: HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY, Administrative
Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (97-BLA-1891) of Administrative Law
Judge Michael P. Lesniak 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). The administrative law
judge found, and the parties stipulated to, twenty-one years of coal mine
employment. Decision and Order at 2; Hearing Transcript at 11. Considering
entitlement pursuant to the provisions of 20 C.F.R. Part 718, the administrative
law judge concluded that the evidence of record is sufficient to establish the
existence of pneumoconiosis arising out of coal mine employment pursuant to 20
C.F.R. §§718.202(a)(4), 718.203(b) and that claimant is totally disabled
due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c), (b). Decision and
Order at 7-10. Accordingly, benefits were awarded beginning November 1, 1996, the
month in which the claim was filed. On appeal, employer contends that the
administrative law judge erred in finding the existence of pneumoconiosis
established pursuant to Section 718.202(a)(4) and that claimant's total disability
was due to pneumoconiosis pursuant to Section 718.204(b). Claimant responds,
urging affirmance of the Decision and Order of the administrative law judge as
supported by substantial evidence. The Director, Office of Workers' Compensation
Programs has filed a letter indicating that he will not respond to this appeal.[1]
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 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 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 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)(en banc).
On appeal, employer initially argues that the administrative law judge erred
in finding the presence of pneumoconiosis established pursuant to Section
718.202(a)(4) on the basis of the report rendered by Dr. Paul, as the report of
this physician is unreliable. In finding the existence of pneumoconiosis
established at Section 718.202(a)(4), the administrative law judge considered the
three relevant medical opinions of record and found the opinions of Drs. Paul and
Fenster sufficient to support a finding of pneumoconiosis.[2] Decision and Order at 8; Director's Exhibits 8, 22, 23; Claimant's
Exhibit 1. Employer argues that inasmuch as Dr. Paul relied upon an x-ray he
interpreted as 1/1 and the physician has no special qualifications in interpreting
x-rays, Dr. Paul's interpretation must give way to the interpretation of Dr.
Mieckowski, a B-reader. Employer's Brief at 2. Employer's contention is misplaced
since Dr. Mieckowski re-read the July 22, 1997 x-ray as 1/0 which supports the
opinion of Dr. Paul as the interpretation is a positive finding for the existence
of pneumoconiosis. See 20 C.F.R. §718.102; Trent, supra. We,
therefore reject employer's contention with respect to the opinion of Dr. Paul. The
administrative law judge is empowered to weigh the medical opinion evidence of record 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 v. Karst-Robbins Coal Co., 12 BLR 1-149
(1989)(en banc); Anderson v. Valley Camp of Utah, 12 BLR 1-111 (1989); Worley v. Blue
Diamond Coal Co., 12 BLR 1-20 (1988). As employer makes no other specific challenge to
the administrative law judge's findings on the merits, we affirm the administrative
law judge's finding that the preponderance of the medical opinion evidence
establishes the presence of pneumoconiosis pursuant to Section 718.202(a)(4).[3] See Sarf v. Director, OWCP, 10 BLR 1-119
(1987); Fish v. Director, OWCP, 6 BLR 1-107 (1983).
Employer further asserts that the administrative law judge erred in finding
that claimant's total disability was due to pneumoconiosis pursuant to Section
718.204(b) in that he accorded greater weight to the opinion of Dr. Fenster as he
was a Department of Labor examining physician. Employer's Brief at 3-4. Employer's
contention is without merit. Although Dr. Fenster examined claimant on behalf of
the Department of Labor, the decision of the administrative law judge, in the
instant case does not reflect that the administrative law judge accorded any weight
to the physician's opinion on this basis. Decision and Order at 9-10; Director's
Exhibit 8; Melnick v. Consolidation Coal Co., 16 BLR 1-31 (1991).
Next, employer argues that the administrative law judge violated the
Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated
into the Act by 30 U.S.C. §932(a), by means of 33 U.S.C. §919(d) and 5
U.S.C. §554(c)(2), in finding that the evidence establishes that claimant's
total disability was due to pneumoconiosis in that he failed to specifically set
forth the reasons for finding Dr. Fenster's opinion better reasoned and documented.
Employer's Brief at 3-5. We agree. In finding that claimant is totally disabled
due to pneumoconiosis, the administrative law judge set forth the relevant evidence
of record and stated that Dr. Fenster's opinion was well reasoned and documented
and entitled to greater weight as he adequately explained how claimant's smoking
history as well as his exposure to coal dust contributed to his condition.[4] Decision and Order at 10. The administrative law
judge failed, however, to explain how the record supports his finding that this
opinion is better reasoned and documented then the other medical opinions of
record, particularly in light of Dr. Fino's discussion of the objective evidence.[5] Under the APA, the administrative law judge is
required to address all relevant evidence of record, explain the rationale employed
in the case and clearly indicate the specific statutory or regulatory provision
pertaining to a particular finding. Although the administrative law judge is
empowered to weigh the evidence, he has provided little basis for his credibility
determinations in this particular case. Fetterman v. Director, OWCP, 7 BLR
1-688 (1985); McCune v. Central Appalachian Coal Co., 6 BLR 1-996 (1984).
We therefore vacate the administrative law judge's findings under Section
718.204(b) and remand this case to the administrative law judge to specifically set
forth the basis for finding certain reports of record reasoned and documented and
to discuss the credibility of each opinion.
Accordingly, the administrative law judge's Decision and Order awarding
benefits is affirmed in part, vacated in part and the case is remanded to the
administrative law judge for further consideration consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1) The administrative law judge's determination that benefits commence on November 1, 1996, as well as his
findings pursuant to 20 C.F.R. §§718.202(a)(1)-(3), 718.203 and 718.204(c) are affirmed as unchallenged
on appeal. Skrack v. Island Creek Coal Co., 6 BLR 1-616 (1983).
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2)Dr. Paul concluded that claimant suffers from coal workers'
pneumoconiosis, 1/1 type in six lung zones but more prominent in the mid and lower
zones. Claimant's Exhibit 1. Dr. Fenster opined that claimant has severe chronic
obstructive pulmonary disease due to smoking and exposure to coal dust. Director's
Exhibits 8, 23. Dr. Fino opined that claimant does not have an occupationally
acquired pulmonary condition and that his COPD is due to smoking. Director's
Exhibit 22. Dr. Cross did not offer an opinion as to whether claimant suffers from
pneumoconiosis. Director's Exhibit 23.
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3)The Board is restricted to the specific issues raised on appeal. See 20 C.F.R.
§802.301(a); Sarf v. Director, OWCP, 10 BLR 1-119 (1987). This case arises within the jurisdiction
of the United States Court of Appeals for the Third Circuit. As employer does not contest the administrative law judge's
failure to weigh the evidence pursuant to 20 C.F.R. §718.202(a) in accordance with Penn Allegheny Coal
Co. v. Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997), a case decided prior to the administrative law judge's
Decision and Order, we affirm the administrative law judge's finding that the existence of pneumoconiosis is established.
See Slinker v. Peabody Coal Co., 6 BLR 1-465 (1983); Fish v. Director, OWCP,
6 BLR 1-107 (1983); Sarf, supra; Skrack, supra.
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4)Dr. Cross did not address the causation of the miner's
disability. Director's Exhibit 23. Dr. Fenster opined that the miner's disability
was due to cigarette smoking and coal dust exposure. Director's Exhibits 8, 23.
Drs. Paul and Fino stated that the miner's disability was due to cigarette smoking.
Director's Exhibit 22; Claimant's Exhibit 1.
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5)The administrative law judge noted that Dr. Fenster accounted
for how both claimant's smoking history and his coal dust exposure contributed to
his condition while Drs. Paul and Fino did not. While this may be a factor
properly considered by the administrative law judge on remand, the administrative
law judge must more thoroughly discuss the conflicting evidence at 20 C.F.R.
§718.204(b).
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NOTE: This is an UNPUBLISHED BLA Document.
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