BRB No. 98-1568 BLA
MARGARET A. HESKEY )
(Widow of ROBERT P. HESKEY) )
)
Claimant-Petitioner )
)
v. )
)
CONSOLIDATED RAIL CORPORATION )
) DATE
ISSUED:08/17/1999 8/13/99 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.
Ronald J. Zera, Greensburg, Pennsylvania, for claimant.
J. Lawson Johnston (Dickie, McCamey & Chilcote), Pittsburgh,
Pennsylvania, for employer.
Helen H. Cox (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] the miner's widow, appeals the
Decision and Order (97-BLA-1519) of Administrative Law Judge Richard A. Morgan
denying benefits on claims filed by the miner and the survivor 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 that employer was the responsible operator and that claimant
established at least five years of qualifying coal mine employment. Considering
entitlement in both the miner's and survivor's claims pursuant to 20 C.F.R. Part
718, the administrative law judge concluded that the evidence of record was
sufficient to establish total respiratory disability pursuant to 20 C.F.R.
§718.204(c), but insufficient to establish the existence of pneumoconiosis,
that the miner's total disability was due to pneumoconiosis or that the miner's
death was due to pneumoconiosis pursuant to 20 C.F.R. §§718.202(a),
718.204(b) and 718.205. Accordingly, benefits were denied in both the miner's and
survivor's claims. On appeal, claimant contends that the administrative law judge
erred in weighing the evidence of record pursuant to Sections 718.202(a) and
718.205. Employer responds urging affirmance of the administrative law judge's
Decision and Order and asserting that it is not the responsible operator. The
Director, Office of Workers' Compensation Programs (the Director), responds
asserting that the administrative law judge's denial of benefits is supported by
substantial evidence.
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 this 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 miner's claim pursuant to
20 C.F.R. Part 718, claimant must establish that the miner suffered from
pneumoconiosis, that such pneumoconiosis arose out of coal mine employment, and
that such pneumoconiosis was totally disabling. See 20 C.F.R.
§§718.3, 718.202, 718.203, 718.204. Failure to prove any of these
requisite elements compels a denial of benefits. See Trent v. Director,
OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1
(1986)(en banc). Additionally, in order to establish entitlement to benefits
pursuant to 20 C.F.R. Part 718 in a survivor's claim filed after January 1, 1982,
claimant must establish that the miner suffered from pneumoconiosis and that the
miner's death was due to pneumoconiosis or that pneumoconiosis was a substantially
contributing cause of death. See 20 C.F.R. §§718.1, 718.202,
718.203, 718.205, 725.201; Trumbo v. Reading Anthracite Co., 17 BLR 1-85
(1993); Haduck v. Director, OWCP, 14 BLR 1-29 (1990); Boyd v. Director,
OWCP, 11 BLR 1-39 (1988). The United States Court of Appeals for the Third
Circuit, within whose jurisdiction this case arises, has held that pneumoconiosis
will be considered a substantially contributing cause of death when it actually
hastens the miner's death. See Lukosevicz v. Director, OWCP, 888 F.2d 1001,
13 BLR 2-100 (3d Cir. 1989).
After consideration of the administrative law judge's Decision and Order, 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. The administrative
law judge properly determined that claimant failed to establish the existence of pneumoconiosis pursuant to 20
C.F.R. §718.202(a) in accordance with the holding of the United States Court of Appeals
for the Third Circuit in Penn Allegheny Coal Co. v. Williams, 114 F.3d 22,
21 BLR 2-104 (3d Cir. 1997), requiring that all types of evidence enumerated by the
four distinct methods of Section 718.202(a) be weighed together to determine if the
miner suffers from the disease.[2]
On appeal, claimant contends that the administrative law judge erred in weighing the medical opinion
evidence in determining that pneumoconiosis was not established. Claimant's Brief at 2. In the instant case, the
administrative law judge considered the x-ray evidence and noted that there were four readings of three x-rays
in the record and that two of these readings were positive and that the other two were negative for the existence
of pneumoconiosis. The administrative law judge further noted that the record contained three CT scans which
revealed some form of idiopathic pulmonary fibrosis, but did not mention coal workers' pneumoconiosis.[3] Decision and Order at 5-6, 24-25; Director's Exhibits 32-38.
The administrative law judge then considered the entirety of the medical opinion evidence of record and
properly noted that Dr. DeMezza was the miner's treating physician, but concluded that the opinions of Drs.
Kucera, Wodzinski and Spagnolo, who opined that the miner's idiopathic pulmonary fibrosis was unrelated to
coal dust exposure, were entitled to greater weight. Decision and Order at 25-26; Director's Exhibits 22-24,
26, 27, 54, 65. The administrative law judge then concluded that in spite of the two positive x-ray readings,
the evidence was insufficient to establish the existence of pneumoconiosis. Decision and Order at 26;
Williams, supra.
The administrative law judge must determine the credibility of the evidence of record and the weight to
be accorded this evidence when deciding whether a party has met its burden of proof. See Mabe v. Bishop
Coal Co., 9 BLR 1-67 (1986). Contrary to claimant's contention, in weighing the medical opinion
evidence of record and finding it insufficient to establish the existence of pneumoconiosis, the administrative
law judge permissibly relied on the opinions of Drs. Kucera, Wodzinski and Spagnolo, who are Board-certified
in internal medicine with a subspecialty in pulmonary medicine, opining that the miner suffered from idiopathic
pulmonary fibrosis unrelated to coal dust or coal mine employment. Decision and Order at 25-26; Director's
Exhibits 23, 27, 65. In so finding, the administrative law judge, within his discretion as fact-finder, rationally
accorded significant weight to the opinions of Drs. Kucera, Wodzinski and Spagnolo on the basis of their
qualifications, the documentation and reasoning contained in their reports and as supported by the objective
evidence of record. See Worhach v. Director, OWCP, 17 BLR 1-105 (1993); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Dillon v. Peabody Coal Co.,
11 BLR 1-113 (1988); Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); King v.
Consolidation Coal Co., 8 BLR 1-167 (1985); Wetzel v. Director, OWCP, 8 BLR 1-139
(1985); Lucostic v. United States Steel Corp., 8 BLR 1-46 (1985); Decision and Order at 25-26.
In addition, the administrative law judge also acted within his discretion in according less weight to the opinion
of Dr. DeMezza, the miner's treating physician, since the physician's qualifications are unknown and as the
physician's opinion is not well reasoned since he relies on a positive x-ray interpretation that is not in the record
and his opinion does not set forth any other objective testing in reaching his result. See Tedesco v.
Director, OWCP, 18 BLR 1-103 (1994); Clark, supra; Fields, supra; Wetzel, supra; Lucostic,
supra; Hutchens v. Director, OWCP, 8 BLR 1-16 (1985).
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). Consequently, we
affirm the administrative law judge's finding that the evidence of record is insufficient to establish the existence
of pneumoconiosis pursuant to Section 718.202(a) as it is supported by substantial evidence and is in
accordance with law.[4] Williams, supra.
Inasmuch as claimant has failed to establish the existence of pneumoconiosis, a requisite element of
entitlement in both a miner's claim and a survivor's claim pursuant to 20 C.F.R. Part 718, entitlement
thereunder is precluded.[5] See Lukosevicz,
supra; Trumbo, supra; Kneel v. Director, OWCP, 11 BLR 1-85, 1-86 (1988); Trent, supra; Campbell v. Director, OWCP, 11 BLR 1-16
(1987); Perry, supra.
Accordingly, the administrative law judge's Decision and Order denying benefits in the miner's claim and the
survivor's claim 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 is Margaret A. Heskey, the miner's widow. The miner,
Robert P. Heskey, filed a claim for benefits on August 21, 1995, which was denied
on August 13, 1996. Director's Exhibits 1, 44. The miner died on March 20, 1996
and claimant filed a survivor's claim on April 9, 1996, which was denied on October
2, 1996. Director's Exhibits 2, 15, 45. Claimant subsequently requested a hearing
on both claims. Director's Exhibit 60.
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2) Claimant asserts that the Director conceded the existence of pneumoconiosis.
Claimant's Brief at 1. Contrary to claimant's statement, the Director only conceded
that the x-ray evidence was positive for pneumoconiosis. July 27, 1998 Brief at 8;
Director's Brief at 2. Moreover, the Director's concession in regard to the x-ray
evidence in this instance does not bind the administrative law judge as employer
continued to contest the existence of pneumoconiosis and the administrative law
judge was required to weigh all the relevant evidence together to determine if the
disease was present. Director's Exhibit 62; Penn Allegheny Coal Co. v.
Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997).
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3)The administrative law judge properly determined that the existence of
pneumoconiosis was not established pursuant to 20 C.F.R. §718.202(a)(2) and (a)(3) as there is no
autopsy or biopsy evidence of record and the presumptions set forth at Section 718.202(a)(3) are not applicable
as the miner filed his claim after January 1, 1982, there is no evidence of complicated pneumoconiosis in the
record and the miner did not die before March 1, 1978. See 20 C.F.R.
§§718.202(a)(2), (a)(3), 718.304; 718.305, 718.306; Decision and Order at 24; Langerud
v. Director, OWCP, 9 BLR 1-101 (1986).
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4)On appeal, claimant challenges the administrative law judge's
findings made pursuant to 20 C.F.R. §718.205. Claimant's Brief at 1-2. As
the administrative law judge's finding that claimant failed to establish the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a) is affirmed, we
need not address the administrative law judge's findings at Section 718.205 or
claimant's arguments thereunder. See Trumbo v. Reading Anthracite Co., 17
BLR 1-85 (1993); Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en
banc).
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5) Employer contends that the administrative law judge erred in determining that
the miner was a coal miner within the meaning of the Act and that it is the
responsible operator. Employer's Brief at 2. We need not address employer's
contentions as we have affirmed the administrative law judge's denial of benefits
on the merits. Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249
(1990).
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NOTE: This is an UNPUBLISHED BLA Document.
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