BRB No. 99-0231 BLA
MATT G. SLONE )
)
Claimant-Petitioner )
)
v. )
)
ENDURO COAL COMPANY ) DATE ISSUED: 01/28/2000
IKE COAL COMPANY/BRANSON )
COLEMAN ENERGY, )
LEE WEST COAL COMPANY )
)
and )
)
KENTUCKY COAL PRODUCERS )
SELF-INSURANCE FUND )
)
Employers/Carrier- )
Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Thomas F. Phalen, Jr.,
Administrative Law Judge, United States Department of Labor.
Matt G. Slone, Shelbiana, Kentucky, pro se.
John T. Chafin (Kazee, Kinner & Chafin), Prestonsburg, Kentucky, for
employers (hereinafter, "employer"), Enduro Coal Company and Branson
Coleman Energy.
Richard Davis (Arter & Hadden, LLP), Washington, D.C., for Lee West Coal
Company.
Before: BROWN and McGRANERY, Administrative Appeals Judges, and NELSON, Acting
Administrative Appeals Judge.
PER CURIAM:
Claimant, without the assistance of counsel, appeals the Decision and Order (97-BLA-1962) of Administrative
Law Judge Thomas F. Phalen, Jr. denying benefits on a request for modification of a duplicate 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).[1] The administrative law judge credited
claimant with at least nineteen years of coal mine employment and adjudicated this claim pursuant to the regulations
contained in 20 C.F.R. Part 718. The administrative law judge found the newly submitted evidence insufficient to
establish the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R.
§§718.202(a)(1)-(4) and 718.203(b). The administrative law judge also found the newly submitted evidence
insufficient to establish total disability pursuant to 20 C.F.R. §718.204(c)(1)-(4). Consequently, the administrative
law judge found that claimant failed to establish a material change in conditions pursuant to 20 C.F.R. §725.309,
and thus, he found that claimant failed to establish a change in conditions or a mistake in a determination of fact pursuant
to 20 C.F.R. §725.310. Accordingly, the administrative law judge denied benefits. Claimant generally challenges
the administrative law judge's denial of benefits. Employer responds, urging affirmance of the administrative law judge's
Decision and Order. Lee West Coal Company also responds, urging affirmance of the administrative law judge's
Decision and Order and contending that it should be dismissed as a potentially responsible operator. The Director, Office
of Workers' Compensation Programs, has declined to participate in this appeal.[2]
In an appeal filed by a claimant without the assistance of counsel, the Board considers the issue raised on appeal
to be whether the Decision and Order below is supported by substantial evidence. See 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).
After considering the newly submitted evidence on modification, the administrative law judge found that claimant
failed to establish a material change in conditions at 20 C.F.R. §725.309. Claimant's previous claim was denied
because claimant failed to establish the existence of pneumoconiosis and total disability. Director's Exhibit 29. The
United States Court of Appeals for the Sixth Circuit, within whose jurisdiction this case arises, has held that in assessing
whether the evidence is sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309(d),
an administrative law judge must consider all of the new evidence, favorable and unfavorable to claimant, and determine
whether the miner has proven at least one of the elements of entitlement previously adjudicated against him.
Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994).
In finding the newly submitted evidence insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(1), the administrative law judge considered the newly submitted x-ray evidence of record which
consists of eight interpretations of four x-rays.[3] The administrative law
judge correctly stated that "[o]nly one of the eight new x-ray interpretations was read as positive for pneumoconiosis."
Decision and Order at 11. In addition to noting the numerical superiority of the negative x-ray readings, the
administrative law judge also considered the qualifications of the various physicians. See Woodward
v. Director, OWCP, 991 F.2d 314, 17 BLR 2-77 (6th Cir. 1993); Sahara Coal Co. v. Fitts, 39 F.3d
781, 18 BLR 2-384 (7th Cir. 1994). The administrative law judge stated, "Dr. Sundaram, the only physician who does
not have superior qualifications for interpreting chest x-rays, found the [March 17, 1996] x-ray positive for
pneumoconiosis." Decision and Order at 11. The administrative law judge also stated that "the numerous readings of
no pneumoconiosis by several 'B' readers and Board-certified radiologists substantially outweighs Dr. Sundaram's
reading." Id. Thus, we hold that substantial evidence supports the administrative law judge's finding that
the newly submitted evidence is insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(1). See Director, OWCP v. Greenwich Collieries [Ondecko], 512 U.S. 267, 18 BLR 2A-1
(1994), aff'g Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 17 BLR 2-64 (3d Cir. 1993).
Next, we affirm the administrative law judge's finding that the newly submitted evidence is insufficient to
establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(2) since there is no biopsy evidence of record.
In addition, we affirm the administrative law judge's finding that the newly submitted evidence is insufficient to establish
the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(3) since none of the presumptions set forth therein is
applicable to the instant claim. See 20 C.F.R. §§718.304, 718.305, 718.306. The presumption
at 20 C.F.R. §718.304 is inapplicable because there is no evidence of complicated pneumoconiosis in the record.
Similarly, claimant is not entitled to the presumption at 20 C.F.R. §718.305 because he filed his claim after
January 1, 1982. See 20 C.F.R. §718.305(e); Director's Exhibit 1. Lastly, this claim is not a
survivor's claim; therefore, the presumption at 20 C.F.R. §718.306 is also inapplicable.
Further, the administrative law judge found the newly submitted evidence insufficient to establish the existence
of pneumoconiosis at 20 C.F.R. §718.202(a)(4). The record contains the newly submitted opinions of Drs.
Broudy, Casey, Dahhan, Fannin, Fino, Hippensteel, Smith and Sundaram.[4] The administrative law judge stated, "I give less weight to the opinions of Drs. Dahhan, Hippensteel,
and Fino because they did not personally examine Claimant." Decision and Order at 13. Further, after noting that "[t]he
analysis boils down to the opinions of Drs. Casey, Sundaram, and Broudy," the administrative law judge found that
"Drs. Casey and Broudy did not make findings consistent with legal or medical pneumoconiosis,[5] while Dr. Sundaram make[s] a finding of medical pneumoconiosis."[6] Id. Inasmuch as the administrative law judge rationally found
that "Claimant has not established by a preponderance of the newly submitted medical evidence that he suffers from
pneumoconiosis," id., we hold that substantial evidence supports the administrative law judge's finding that
the newly submitted evidence is insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(4).[7] See Ondecko, supra. Although
the administrative law judge's sole basis for discrediting the opinions of Drs. Dahhan, Fino and Hippensteel is the fact
that they did not examine claimant, see Newland v. Consolidation Coal Co., 6 BLR 1-1286 (1984), any error
by the administrative law judge in this regard is harmless since Drs. Dahhan, Fino and Hippensteel opined that claimant
does not suffer from coal workers' pneumoconiosis, Director's Exhibits 53, 56; Employer's Exhibits 1-3; Lee Coal
Company's Exhibits 3, 6; see Larioni v. Director, OWCP, 6 BLR 1-1276 (1984).
With regard to 20 C.F.R. §718.204(c), the administrative law judge found the newly submitted evidence
insufficient to establish total disability. Since none of the newly submitted pulmonary function study evidence or arterial
blood gas study evidence of record yielded qualifying[8] values,
Director's Exhibits 22, 53, 59; Lee Coal Company's Exhibits 1, 6, we affirm the administrative law judge's finding that
the newly submitted evidence is insufficient to establish total disability at 20 C.F.R. §718.204(c)(1) and (c)(2).
Further, we affirm the administrative law judge's finding that the newly submitted evidence is insufficient to establish
total disability at 20 C.F.R. §718.204(c)(3) since the record does not contain evidence of cor pulmonale with right
sided congestive heart failure.
We will next address the administrative law judge's finding that the newly submitted evidence is insufficient to
establish total disability at 20 C.F.R. §718.204(c)(4). Whereas Drs. Broudy, Dahhan, Fino and Hippensteel
opined that claimant does not suffer from a disabling respiratory impairment, Director's Exhibits 53, 56; Employer's
Exhibits 1-3; Lee Coal Company's Exhibits 3, 6, Dr. Sundaram opined that claimant suffers from a disabling respiratory
impairment,[9] Director's Exhibit 62. Drs. Casey, Fannin and Smith
did not render opinions with regard to the issue of total disability. Director's Exhibits 39, 59; Lee Coal Company's
Exhibit 1. Inasmuch as the administrative law judge rationally found that the opinions of Drs. Broudy, Dahhan, Fino
and Hippensteel outweigh the contrary opinion of Dr. Sundaram, Decision and Order at 14, we hold that substantial
evidence supports the administrative law judge's finding that the newly submitted evidence is insufficient to establish total
disability at 20 C.F.R. §718.204(c)(4). See Ondecko, supra.
Since the newly submitted evidence on modification is insufficient to establish the existence of pneumoconiosis
at 20 C.F.R. §718.202(a) and total disability at 20 C.F.R. §718.204(c), we affirm the administrative law
judge's finding that the newly submitted evidence is insufficient to establish a change in conditions in claimant's duplicate
claim at 20 C.F.R. §725.310. See Kingery v. Hunt Branch Coal Co., 19 BLR 1-8 (1994); Napier
v. Director, OWCP, 17 BLR 1-111 (1993); Nataloni v. Director, OWCP, 17 BLR 1-82 (1993).
Finally, we affirm the administrative law judge's finding that claimant failed to establish a mistake in a determination
of fact at 20 C.F.R. §725.310. See Consolidation Coal Co. v. Worrell, 27 F.3d 227, 18
BLR 2-290 (6th Cir. 1994). The administrative law judge's finding that "[t]here is no mistake in a determination of fact"
is based on his review of all of the evidence of record. Decision and Order at 14.
Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed.
SO ORDERED.
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Claimant filed his initial claim on August 31, 1987.
Director's Exhibit 29. This claim was denied by a Department of Labor (DOL) claims
examiner on February 10, 1988 because claimant failed to establish the existence
of pneumoconiosis and total disability. Id. Inasmuch as claimant did not
pursue this claim any further, the denial became final. Claimant filed another
claim on July 6, 1993. Director's Exhibit 1. On June 9, 1995, Administrative Law
Judge Robert L. Hillyard issued a Decision and Order denying benefits because
claimant failed to establish a material change in conditions, Director's Exhibit
32, which the Board affirmed, Slone v. Enduro Coal Co., BRB No. 95-1695 BLA
(Aug. 29, 1995)(unpub.). On June 20, 1996, claimant requested an appeal of the
Board's decision, Director's Exhibit 38, which the DOL construed as a request for
modification, Director's Exhibit 44.
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2)Inasmuch as the administrative law judge's length of coal mine
employment finding, which is not adverse to this claimant, is not challenged on
appeal, we affirm this finding. See Skrack v. Island Creek Coal Co., 6 BLR
1-710 (1983).
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3)The administrative law judge stated that "[t]here are five new
chest x-rays included in the record dated October 6, 1995, March 17, 1996, January
7, 1997, September 16, 1997, and December 30, 1997." Decision and Order at 11.
However, the record does not contain an x-ray dated December 30, 1997. To the
contrary, the record reveals that Dr. Scott wrote a letter dated December 30, 1997
which indicates that he read an x-ray dated March 17, 1996 as negative for
pneumoconiosis. Lee West Coal Company Exhibit 5. Nonetheless, inasmuch as the
administrative law judge considered Dr. Scott's negative x-ray reading, which
supports the administrative law judge's finding that claimant did not establish the
existence of pneumoconiosis, in his weighing of the newly submitted x-ray evidence
at 20 C.F.R. §718.202(a)(1), any error by the administrative law judge in this
regard is harmless. See Larioni v. Director, OWCP, 6 BLR 1-1276 (1984).
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4)The administrative law judge did not consider the newly
submitted opinions of Drs. Fannin and Smith with regard to the issue of the
existence of pneumoconiosis at 20 C.F.R. §718.202(a)(4). Dr. Fannin diagnosed
asthmatic bronchitis, Director's Exhibits 39, 59, and Dr. Smith diagnosed
labyrinthitis, Lee West Coal Company's Exhibit 1. Inasmuch as neither Dr. Fannin
nor Dr. Smith specifically opined that claimant suffers from a pulmonary condition
related to coal dust exposure, any error by the administrative law judge in this
regard is harmless. See Larioni, supra.
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5)Dr. Broudy opined that claimant does not suffer from coal
workers' pneumoconiosis. Director's Exhibit 53; Lee Coal Company's Exhibits 3, 6.
Dr. Casey diagnosed chronic obstructive lung disease exacerbation with acute
asthmatic bronchitis. Director's Exhibits 39, 59; Lee Coal Company's Exhibit
1.
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6)Dr. Sundaram opined that claimant suffers from coal workers'
pneumoconiosis. Director's Exhibit 62. Although the administrative law judge did
not indicate that he considered whether the newly submitted opinion of Dr. Sundaram
is entitled to greater weight than the contrary newly submitted opinions because
of Dr. Sundaram's status as claimant's treating physician, the administrative law
judge, based on claimant's testimony at the hearing, stated that "Claimant visits
his family doctor, Dr. King, about once every six months...[and] sees Dr. Sundaram
at the Black Lung Association about once every month." Decision and Order at 4;
Hearing Transcript at 20. However, Dr. Sundaram's report indicates that Dr.
Sundaram was claimant's evaluating physician rather than claimant's treating
physician. Director's Exhibit 62. Thus, since the record does not indicate that
Dr. Sundaram is claimant's treating physician, see Tussey v. Island Creek Coal
Co., 982 F.2d 1036, 17 BLR 2-16 (6th Cir. 1993), any error by the
administrative law judge in this regard is harmless, see Larioni, supra.
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7)Inasmuch as the administrative law judge rationally found that the newly submitted evidence
is insufficient to establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a), we hold that substantial
evidence supports the administrative law judge's finding that the newly submitted evidence is insufficient to establish that
claimant's pneumoconiosis arose out of coal mine employment at 20 C.F.R. §718.203(b).
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8)A "qualifying" pulmonary function study or blood gas study yields values that are equal
to or less than the appropriate values set out in the tables at 20 C.F.R. Part 718, Appendices B and C, respectively. A
"non-qualifying" study exceeds those values. See 20 C.F.R. §718.204(c)(1), (c)(2).
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9)Dr. Sundaram responded "No" to the question, "Is the miner physically able, from a
pulmonary standpoint, to do his usual coal mine employment?" Director's Exhibit 62.
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NOTE: This is an UNPUBLISHED BLA Document.
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