BRB No. 98-1586 BLA
THELMA R. DURHAM )
(Widow of GEORGE DURHAM) )
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:08/27/1999
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT OF )
LABOR )
Respondent ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Pamela Lakes Wood,
Administrative Law Judge, United States Department of Labor.
Thelma R. Durham, Big Stone Gap, pro se.
Sarah M. Hurley (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: HALL, Chief Administrative Appeals Judge, McGRANERY, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant, without the assistance of counsel,[1]
appeals the Decision and Order Denying Benefits (97-BLA-1072) of Administrative
Law Judge Pamela Lakes Wood 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 miner died on November 7, 1994, Director's Exhibit 6, and,
in August 1996, claimant filed a survivor's claim. The administrative law judge, at the request of claimant, did not take
testimony from claimant at the hearing in this case. The administrative law judge found that 6.25 years of coal mine
employment was established. The administrative law judge further found that the medical opinion evidence was sufficient
to establish the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R.
§§718.202(a)(4) and 718.203.[2] However, the
administrative law judge found that claimant failed to establish that the miner's death was due to pneumoconiosis. 20
C.F.R. §718.205(c); see Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th Cir. 1992),
cert. denied, 506 U.S. 1050 (1993). Accordingly, benefits were denied. Claimant appeals, contending
generally that the administrative law judge erred in denying benefits. The Director, Office of Workers' Compensation
Programs, has submitted a response supporting affirmance of the administrative law judge's denial of benefits.
In an appeal by a claimant proceeding 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 Corp., 12 BLR
1-176 (1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986). 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 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 survivor's benefits in a claim filed
after January 1, 1982, claimant must establish that the miner had pneumoconiosis
arising out of coal mine employment and that the miner's death was due to
pneumoconiosis, that pneumoconiosis was a substantially contributing cause or
factor leading to the miner's death, that the miner's death was caused by
complications of pneumoconiosis, or that the miner had complicated pneumoconiosis.
20 C.F.R. §§718.1, 718.202, 718.203, 718.205(c), 718.304; see Trumbo
v. Reading Anthracite Co., 17 BLR 1-85 (1993); Neeley v. Director, OWCP,
11 BLR 1-85 (1988). The United States Court of Appeals for the Fourth Circuit,
within whose jurisdiction the instant case arises, has held that pneumoconiosis
should be considered a substantially contributing cause of death if it actually
hastened the miner's death. Shuff, 967 F.2d at 979-980, 16 BLR at 2-93.
The administrative law judge correctly found that although the miner's family
reported a history of "3rd stage black lung" when the miner was admitted to the
hospital on the date of his death, no specific diagnosis of pneumoconiosis was made
by hospital personnel. Decision and Order at 8; Director's Exhibit 7. The
administrative law judge properly found that there is absolutely no medical
evidence which establishes that the miner's pneumoconiosis caused, contributed, or
hastened his death. The administrative law judge correctly found that the only
medical evidence which directly addresses the issue is the miner's death
certificate, which states that the miner died due to "Sepsis - Renal Failure."
Director's Exhibit 6. We, therefore, affirm, as supported by substantial evidence,
the administrative law judge's findings that claimant failed to establish that the
miner's death was due to pneumoconiosis, as provided in Section 718.205(c)(1), (2)
and (4).[3]
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) Ron Carson, a benefits counselor with Stone Mountain Health Services in St. Charles,
Virginia, on behalf of claimant, requested an appeal of the administrative law judge's Decision and Order Denying Benefits,
but Mr. Carson is not representing claimant on appeal. See Shelton v. Claude V. Keen Trucking Co., 19 BLR 1-88
(1995)(Order).
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2) We affirm, as uncontested on appeal, the administrative law judge's findings at 20 C.F.R.
§§718.202(a)(4) and 718.203, since these findings are not adverse to claimant. See Skrack v. Island
Creek Coal Co., 6 BLR 1-710 (1983).
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3) We also affirm the administrative law judge's finding that since claimant has not established
the presence of complicated pneumoconiosis, claimant also failed to establish death due to pneumoconiosis pursuant to 20
C.F.R. §718.205(c)(3).
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NOTE: This is an UNPUBLISHED BLA Document.
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