BRB No. 02-0550 BLA
IRVIN STEVENS )
)
Claimant-Petitioner )
)
v. )
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IKERD BANDY COMPANY, ) DATE ISSUED:02/12/2003
INCORPORATED )
)
and )
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ZURICH AMERICAN INSURANCE GROUP )
)
Employer/Carrier-Respondents )
)
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 - Denial of Benefits of Robert L.
Hillyard, Administrative Law Judge, United States Department of Labor.
John Hunt Morgan (Edmond Collett, P.S.C.), Hyden, Kentucky, for
claimant.
Bonnie Hoskins (Hoskins Law Offices, PLLC), Lexington, Kentucky, for
employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order - Denial of Benefits (01-BLA-0750) of
Administrative Law Judge Robert L. Hillyard on a claim[1] 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] The administrative law judge initially
credited claimant with twenty-six years of qualifying coal mine employment. Next,
the administrative law judge found that claimant failed to establish the existence
of pneumoconiosis pursuant to 20 C.F.R. §718.202(a) and total disability
pursuant to 20 C.F.R. §718.204(b). Accordingly, benefits were denied.
On appeal, claimant argues that the administrative law judge erred in failing
to find the existence of pneumoconiosis established by x-ray and medical opinion
evidence under Sections 718.202(a)(1) and (a)(4) and total respiratory disability
under Section 718.204(b). 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 his intention not to
participate in this appeal.[3]
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 the 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
and Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant argues that the administrative law judge erred in failing to consider
the exertional requirements of claimant's usual coal mine work as a drill operator
and bolt machine operator in conjunction with the opinion of Dr. Baker, who
diagnosed a minimal breathing impairment, when the administrative law judge
determined that claimant was not totally disabled.
In responding to the question concerning the degree of the severity of
claimant's respiratory impairment, Dr. Baker answered that claimant has a minimal
impairment on Form CM-988, Director's Exhibit 7. In addition however, Dr. Baker
marked the "No Impairment" box when asked to characterize claimant's impairment on
an accompanying addendum to Form CM-988. Director's Exhibit 7. While an opinion
indicating even a "mild" respiratory impairment may establish total disability if
it precludes the performance of the miner's usual duties, see Cornett v. Benham
Coal Co., 227 F.3d 569, 22 BLR 2-107, 2-124 (6th Cir. 2000); in this case,
where the physician went on to also conclude that claimant had no respiratory
impairment, the administrative law judge permissibly concluded that the opinion was
insufficient to establish total disability. See Lane v. Union Carbide Corp.,
105 F.3d 166, 172-173, 21 BLR 2-34, 2-45-46 (4th Cir. 1997). Accordingly, we
affirm the administrative law judge's finding that claimant has failed to establish
total disability by medical opinion evidence. 20 C.F.R. §718.204(b)(2)(iv);
see Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); Gee v.
W.G. Moore & Sons, 9 BLR 1-4 (1986); Decision and Order at 6. Claimant's
failure to establish total respiratory disability under Section 718.204(c), a
requisite element of entitlement pursuant to Part 718, obviates the need to address
claimant's arguments with respect to the existence of pneumoconiosis under Section
718.202(a)(1) and (a)(4). See Trent v. Director, OWCP, 11 BLR 1-26 (1987);
Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en banc).
Accordingly, the Decision and Order - Denial of Benefits of the administrative
law judge is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1) Claimant, Irvin Stevens, filed his application for
benefits on July 17, 2000. 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 20 C.F.R.
Parts 718, 722, 725, and 726 (2002). All citations to the regulations, unless
otherwise noted, refer to the amended regulations.
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3) We affirm the administrative law judge's determinations
regarding length of coal mine employment and pursuant to 20 C.F.R.
§§718.202(a)(2)-(3) and 718.204(b)(2)(i)-(iii) because these
determinations are unchallenged on appeal. See Coen v. Director, OWCP, 7 BLR
1-30, 1-33 (1984); Skrack v. Director, OWCP, 6 BLR 1-710 (1983); Decision
and Order at 5, 6.
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NOTE: This is an UNPUBLISHED BLA Document.
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