BRB No. 01-0581 BLA
MARTHA R. WARD )
(Widow of DONALD E. WARD) )
)
Claimant-Petitioner )
)
v. )
)
VALLEY CAMP COAL COMPANY ) DATE ISSUED:02/28/2002
)
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 Denying Benefits of Richard A. Morgan,
Administrative Law Judge, United States Department of Labor.
Martha R. Ward, Winifred, West Virginia, pro se.
Mary Rich Maloy (Jackson & Kelly PLLC), Charleston, West Virginia, for
employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant,[1] without the assistance of
counsel, appeals the Decision and Order Denying Benefits (99-BLA-0703) of
Administrative Law Judge Richard A. Morgan 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).[2] Adjudicating this claim pursuant to 20 C.F.R. Part 718, the
administrative law judge credited the miner with fourteen and one-half years of
qualifying coal mine employment. Next, the administrative law judge found that
claimant established the existence of pneumoconiosis pursuant to 20 C.F.R.
§§718.202(a), but failed to establish that the miner's death was due to
pneumoconiosis pursuant to Section 718.205(c). Accordingly, the administrative law
judge denied benefits.[3]
On appeal, claimant generally challenges the administrative law judge's denial
of benefits. Employer responds, urging affirmance of the denial of benefits. The
Director, Office of Workers' Compensation Programs (the Director), as party-in-interest, has filed a letter indicating that he is not participating in this
appeal.[4] Employer and the Director also argue
that the new regulations will not affect the outcome of this case.
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).
To establish entitlement to survivor's benefits, claimant must establish that
the miner had pneumoconiosis, that the miner's pneumoconiosis arose out of coal
mine employment, and that the miner's death was due to pneumoconiosis. 20 C.F.R.
§§718.3, 718.202, 718.203, 718.205(a); Trumbo v. Reading Anthracite
Co., 17 BLR 1-85 (1993); Haduck v. Director, OWCP, 14 BLR 1-29 (1990);
Neeley v. Director, OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP,
11 BLR 1-39 (1988). For survivor's claims filed on or after January 1, 1982, the
miner's death will be considered due to pneumoconiosis if pneumoconiosis was the
cause of the miner's death, was a substantially contributing cause or factor
leading to the miner's death, death was caused by complications of pneumoconiosis,
or the presumption, relating to complicated pneumoconiosis, set forth at Section
718.304 is applicable. 20 C.F.R. §718.205(c)(1)-(3). Pneumoconiosis is a
substantially contributing cause of death if it hastened the miner's death. 20
C.F.R. §718.205(c)(5); see Shuff v. Cedar Coal Co., 967 F.2d 977, 16
BLR 2-90 (4th Cir. 1992), cert. denied, 113 S.Ct. 969 (1993); accord
Bradberry v. Director, OWCP, 117 F.3d 1361, 21 BLR 2-166 (11th Cir. 1997);
Brown v. Rock Creek Mining Co., 996 F.2d 812, 17 BLR 2-135 (6th Cir. 1993);
Lukosevicz v. Director, OWCP, 888 F.2d 1001, 13 BLR 2-100 (3d Cir. 1989).
Relevant to Section 718.205(c), the record contains the opinions of eight
physicians. Dr. Shinwai completed the death certificate and listed lung cancer
with metastasis and severe cachexia as the immediate causes of death and coronary
artery disease and chronic obstructive pulmonary disease as other significant
conditions. Director's Exhibit 21.[5] Drs.
Kleinerman, Fino, Castle, Zaldivar, Caffrey, and Hutchins, each reviewed the
miner's medical records, diagnosed the existence of mild, simple coal worker's
pneumoconiosis, and opined that the miner's mild simple pneumoconiosis did not
cause, contribute to, or hasten the miner's death in any way, did not contribute
in any way to his respiratory impairment and disability, and did not contribute to
his lung cancer or hasten his death from lung cancer. Director's Exhibit 21;
Employer's Exhibits 2-8. Dr. Naeye found evidence of a small amount of black
pigment present in the miner's lungs, but opined that it failed to meet the minimal
criteria for a diagnosis of coal workers' pneumoconiosis, and therefore, that coal
workers' pneumoconiosis played no role in the miner's death. Dr. Naeye went on to
state that the miner died due to lung cancer and would have died at the same time
and in the same way if he had never mined coal. Employer's Exhibits 1, 4.
The administrative law judge properly found that all of the physicians of
record opined that the direct cause of the miner's death was lung cancer. Decision
and Order at 14. Therefore, we affirm the administrative law judge's determination
that claimant failed to establish that pneumoconiosis was the cause of the miner's
death pursuant to Section 718.205(c)(1). See 20 C.F.R. §718.205(c)(1).
We also affirm the administrative law judge's determination that claimant failed
to establish that pneumoconiosis substantially contributed to or hastened the
miner's death pursuant to Section 718.205(c)(2), (5) inasmuch as this determination
is rational, contains no reversible error, and is supported by substantial
evidence. The administrative law judge, within a proper exercise of his
discretion, found that the medical evidence of record failed to establish that
pneumoconiosis either hastened or substantially contributed to the miner's death.
See Shuff, supra; Dillon v. Peabody Coal Co., 11 BLR 1-113
(1988); Neeley, supra. Specifically, the administrative law judge
permissibly credited the physicians who opined that the pathological evidence
established the presence of mild, simple coal workers' pneumoconiosis, but that
this pneumoconiosis was too mild to have caused any change in the miner's pulmonary
function before his death or to have caused, contributed to, or hastened the
development of the miner's lung cancer. Decision and Order at 14. The
administrative law judge found the reports of Drs. Kleinerman, Fino, Castle,
Zaldivar, Caffrey, and Hutchins entitled to determinative weight inasmuch as these
physicians rendered opinions that cited extensive medical literature and authority
as support for their conclusions that coal mine dust was not related to the
development of lung cancer. See Hunter v. Director, OWCP, 803 F.2d 800,
803, 9 BLR 2-140, 2-146 (4th Cir. l986); Trumbo v. Reading Anthracite Co.,
17 BLR 1-85, 1-88-89 (1993); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149
(1989)(en banc); Decision and Order at 14. Consequently, the administrative
law judge reasonably found that there was no medical opinion of record that
contradicted the opinions of the aforementioned physicians that, although both lung
cancer and pathological coal workers' pneumoconiosis were present, there was no
relationship between these two pulmonary conditions in the cause of the miner's
death. See Dillon, supra; Neeley, supra; Decision and
Order at 14. Hence, the administrative law judge properly found that claimant
failed to establish that pneumoconiosis was a substantially contributing cause or
factor leading to the miner's death. See 20 C.F.R. §718.205(c)(2), (5).
Similarly, the administrative law judge properly found that the presumption,
relating to the existence of complicated pneumoconiosis, at Section 718.304 was
inapplicable because the record did not contain evidence demonstrating the presence
of complicated pneumoconiosis. See 20 C.F.R. §§718.205(c)(3),
718.304; Decision and Order at 14.
Accordingly, the administrative law judge properly found that claimant failed
to satisfy her burden of affirmatively establishing that pneumoconiosis caused,
contributed to, or hastened the miner's death. 20 C.F.R. §718.205(c)(1)-(5).
See Shuff, supra; Dillon, supra; Neeley,
supra. Hence, we affirm the administrative law judge's Section 718.205(c)
finding. See Shuff, supra.
Accordingly, the Decision and Order Denying Benefits of the administrative law
judge is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1) Claimant, Martha R. Ward, is the widow of Donald E. Ward, the miner, who died on
April 16, 1998. Director's Exhibit 21. The miner's first application for benefits was filed on May 20, 1981, and
finally denied on March 16, 1982. Director's Exhibit 38. The miner took no further action on this claim, and
subsequently, filed a duplicate claim for benefits on March 13, 1990, which was finally denied on September 7,
1990. Director's Exhibit 39. Claimant, the miner's widow, filed her survivor's claim for benefits on June 10,
1998. Director's Exhibit 1.
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2) The Department of Labor has amended the regulations implementing the Federal Coal Mine
Health and Safety Act of 1969, as amended. These regulations became effective on January 19, 2001, and are found at 65
Fed. Reg. 80,045-80,107 (2000)(codified at 20 C.F.R. Parts 718, 722, 725, and 726). All citations to the regulations, unless
otherwise noted, refer to the amended regulations.
Pursuant to a lawsuit challenging revisions to 47 of the regulations implementing the Act, the United States
District Court for the District of Columbia granted limited injunctive relief for the duration of the lawsuit, and stayed,
inter alia, all claims pending on appeal before the Board under the Act, except for those in which the Board, after
briefing by the parties to the claim, determined that the regulations at issue in the lawsuit would not affect the outcome of
the case. National Mining Ass'n v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9, 2001) (order granting preliminary
injunction). On August 9, 2001, the District Court issued its decision upholding the validity of the challenged regulations
and dissolving the February 9, 2001 order granting the preliminary injunction. National Mining Ass'n v. Chao,
160 F. Supp. 2d 47 (D.D.C. 2001). In the instant case, the administrative law judge rejected employer's argument that the
new regulations would impact the outcome of this case and applied the newly promulgated regulations. See
Decision and Order at 11-15.
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3) Regarding claimant's appearance at the formal hearing before the administrative law judge
without representation, a review of the record and hearing transcript reveals that claimant was afforded a full and fair
hearing in accordance with 20 C.F.R. §725.362(b) inasmuch as the administrative law judge fully complied with the
procedural safeguards delineated in Shapell v. Director, OWCP, 7 BLR 1-304 (1984); see [Dec. 2000]
Hearing Transcript at 7-17.
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4) We affirm the administrative law judge's findings regarding length of coal mine employment
and pursuant to Sections 718.202(a) and 718.203(b), which are not adverse to claimant, inasmuch as these determinations
are unchallenged on appeal. See Coen v. Director, OWCP, 7 BLR 1-30, 1-3 (1984); Skrack v. Director,
OWCP, 6 BLR 1-710 (1983); Decision and Order at 3, 13.
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5) Dr. Shinwai listed chronic obstructive pulmonary disease as an "other significant condition
contributing to death...." Director's Exhibit 21. However, because Dr. Shinwai's diagnosis of chronic obstructive
pulmonary disease failed to state that the condition arose out of coal mine employment, it does not meet the definition of
pneumoconiosis under the Act. 20 C.F.R. §718.201; see Barber v. Director, OWCP, 43 F.3d 899, 19 BLR
2-61 (4th Cir. 1995); Clinchfield Coal Co. v. Fuller, 180 F.3d 622, 21 BLR 2-654 (4th Cir. 1999).
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NOTE: This is an UNPUBLISHED BLA Document.
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