BRB No. 99-0362 BLA
ALFRED J. HENRY )
)
Claimant-Petitioner )
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v. )
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TENNESSEE CONSOLIDATED ) DATE ISSUED: 01/27/2000
COAL COMPANY )
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Employer-Respondent )
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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 of Mollie W. Neal, Administrative Law
Judge, United States Department of Labor.
Robert J. Harriss (Harriss, Hartman, Aaron, Wharton, Boyd & Secord,
P.C.), Rossville, Georgia, for claimant.
Ronald E. Gilbertson (Kilcullen, Wilson & Kilcullen, Chartered),
Washington, D.C., for employer.
Before: BROWN and McGRANERY, Administrative Appeals Judges and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order (97-BLA-1955) of Administrative Law
Judge Mollie W. Neal denying benefits on 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). The administrative law
judge credited claimant with at least thirteen years of coal mine employment and,
based on the date of filing, adjudicated this duplicate claim[1] pursuant to the regulations contained in 20 C.F.R
Part 718. Decision and Order at 2-4. The administrative law judge, noting the
proper standard, found the newly submitted evidence insufficient to establish the
existence of pneumoconiosis pursuant to 20 C.F.R §718.202(a)(1)-(4), and
total disability pursuant to 20 C.F.R. §718.204(c)(1)-(4) and thus
insufficient to establish a material change in conditions pursuant to 20 C.F.R.
§725.309. Decision and Order at 3-8. Accordingly, benefits were denied. On
appeal, claimant generally challenges the administrative law judge's denial of
benefits and asserts that a remand is required for a more complete evaluation.
Employer responds, urging affirmance of the administrative law judge's Decision and
Order. The Director, Office of Workers' Compensation Programs, has filed a letter
indicating that he will not participate in this appeal.
The Board's scope of review is defined by statute. The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is 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 benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must establish that he suffers from
pneumoconiosis; that the pneumoconiosis arose out of coal mine employment; and that
the pneumoconiosis is totally disabling. See 20 C.F.R. §§718.3,
718.202, 718.203, 718.204. Failure of claimant to establish any of these elements
precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry
v. Director, OWCP, 9 BLR 1-1 (1986)(en banc).
Initially, the administrative law judge properly considered the newly
submitted evidence of record and found that claimant failed to establish a material
change in conditions at 20 C.F.R. §725.309. The administrative law judge
correctly noted that the previous claim was denied as claimant did not establish
the existence of pneumoconiosis. Decision and Order at 2; Director's Exhibit 23-28. The United States Court of Appeals for the Sixth Circuit 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, an administrative law judge must
consider all of the new evidence, favorable and unfavorable to claimant, and
determine whether claimant has proven at least one of the elements of entitlement
previously adjudicated against him.[2]
Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994).
The administrative law judge properly found the evidence insufficient to
establish the existence of pneumoconiosis at 20 C.F.R §718.202(a)(1) as the
two newly submitted x-ray readings were negative for the existence of
pneumoconiosis. 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); Decision and Order at 4; Director's Exhibits 9, 10. Upon review
of the record, 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 Woodward, supra;
Fitts, supra.
Further, 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 the record does not contain any biopsy results
demonstrating the presence of pneumoconiosis. Decision and Order at 5.
Additionally, 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.[3] See
20 C.F.R. §§718.304, 718.305, 718.306; Decision and Order at 5.
Next, in finding the evidence insufficient to establish the existence of
pneumoconiosis at 20 C.F.R. §718.202(a)(4), the administrative law judge
considered the relevant, newly submitted medical opinions of Drs. Meyers and
Soteres and rationally concluded that they are insufficient to establish claimant's
burden of proof. Director's Exhibits 6, 7; Decision and Order at 5-6; Trent,
supra; Perry, supra. The administrative law judge acted within her
discretion in concluding that the opinion of Dr. Meyers is insufficient to
establish the existence of pneumoconiosis as the physician's diagnosis of possible
coal miner's pneumoconiosis was equivocal and she did not relate any other
diagnosed condition to coal dust exposure. Director's Exhibit 6; Decision and
Order at 5-6; Justice v. Island Creek Coal Co., 11 BLR 1-91 (1988);
Dockins v. McWane Coal Co., 9 BLR 1-57 (1986). Additionally, the
administrative law judge properly concluded that the opinion of Dr. Soteres is
insufficient to establish the existence of pneumoconiosis as the physician did not
relate his diagnosis of bronchitis and asthma to coal dust exposure. Director's
Exhibit 7; Decision and Order at 6; Dockins, supra. Moreover, we reject
claimant's contention that the administrative law judge should have applied the "true doubt" rule when
considering the medical evidence of record, which claimant alleges is equally probative.[4] The United States Supreme Court has held that the application
of the true doubt rule violates Section 7(c) of the Administrative Procedure Act (APA), 5 U.S.C.
§557(c)(3)(A), as incorporated into the Act by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d) and
30 U.S.C. §932(a), as it relieves claimants of their burden of proof in establishing entitlement to benefits.
See Director, OWCP v. Greenwich Collieries [Ondecko], 114 S.Ct. 2251, 18 BLR 2A-1 (1994).
Thus, 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)(4). Since claimant failed to establish the existence of
pneumoconiosis, the administrative law judge properly concluded that the newly
submitted evidence is insufficient to establish a material change in conditions at
20 C.F.R. §725.309.[5] See
Ross, supra. Consequently, we affirm the administrative law judge's
denial of benefits as it is supported by substantial evidence and is in accordance
with law.
Finally, in his Petition for Review and Brief filed with the Board on March 10, 1999, claimant,
through counsel, submitted additional evidence and requested that the case be remanded for further evaluation
of claimant's condition. See Claimant's Brief at 10-11. As the Board is without
authority to consider new evidence on appeal, see 20 C.F.R. §802.301;
Berka v. North American Coal Corp., 8 BLR 1-183 (1985), we construe this request
to be a petition for modification pursuant to 20 C.F.R. §725.310. Consolidation Coal Co.
v. Worrell, 27 F.3d 227, 18 BLR 2-290 (6th Cir. 1994).
The United States Courts of Appeals for the Sixth Circuit has held that modification proceedings must
be initiated before the district director pursuant to 20 C.F.R. §725.310. Saginaw Mining Co. v.
Mazzulli, 818 F.2d 1278 10 BLR 2-119 (6th Cir. 1987). Pursuant to this decision, the petition for
modification in this case must be filed with the district director, and the Board will remand the case to the
district director to process the petition.
The district director's role in processing a modification petition is ministerial and administrative. The
authority of the district director is limited to processing the petition under the same procedures applicable to
other claims. Hoskins v. Director, OWCP, 11 BLR 1-144 (1988). As this claim arises within the
jurisdiction of the United States Court of Appeals for the Sixth Circuit, we remand the case to the district
director for consideration of the request for modification.[6]
After the request for modification is processed by the district director, the case may be transferred to
an administrative law judge for a hearing pursuant to the regulations. In the event the administrative law judge
denies modification and claimant wishes the Board to consider whether the denial of modification was
erroneous, a Notice of Appeal must be filed. The Notice of Appeal must be filed with the Board within thirty
(30) days of the date the Order on Modification is filed. 20 C.F.R. §802.205. The appeal of the Order
on Modification will be assigned a new docket number.
In the event an administrative law judge grants modification, any party who is aggrieved by the Order
granting modification may file an appeal with the Board within thirty (30) days of the date the Order granting
Modification is filed. 20 C.F.R. §§802.205, 802.301(c).
Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed and the case is remanded to the district director to address the
request for modification in accordance with this opinion.
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 for benefits on January 11,
1988, which was denied by Administrative Law Judge E. Earl Thomas by Decision and
Order dated October 11, 1990, for failure to establish the existence of
pneumoconiosis. Director's Exhibit 23-28. The Board affirmed this denial on
September 25, 1992. Director's Exhibit 23-35. Claimant filed the instant claim on
December 9, 1996. Director's Exhibit 1.
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2)This case arises within the jurisdiction of the United States
Court of Appeals for the Sixth Circuit as the miner was employed in the coal mine
industry in Tennessee. See Shupe v. Director, OWCP, 12 BLR 1-200
(1989)(en banc).
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3)The presumption at 20 C.F.R. §718.304 is inapplicable
because there is no evidence of complicated pneumoconiosis in the record. 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.
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4)"True doubt" is said to arise only when equally probative but contradictory evidence is
presented in the record, where selection of one set of facts would resolve the case against the claimant, but selection of the
contradictory set of facts would resolve the case for claimant. See Roberts v. Bethlehem Mines Corp., 8 BLR 1-211
(1985); Kozele v. Rochester & Pittsburgh Coal Co., 6 BLR 1-378 (1983); Provance v. United States Steel
Corp., 1 BLR 1-483 (1978).
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5)Although the administrative law judge considered the newly submitted evidence pursuant
to 20 C.F.R. §718.204(c)(1)-(4), the prior claim was denied solely on the basis that claimant did not establish the
existence of pneumoconiosis. Decision and Order at 6-8; Director's Exhibits 6, 7, 23-28, 23-35; Sharondale Corp.
v. Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994).
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6) On appeal, claimant also asserts that the case should be remanded for a more complete evaluation and further
opinion by Dr. Soteres. See Claimant's Brief at 11. Claimant bears the burden of establishing entitlement in this
case. See White v. Director, OWCP, 6 BLR 1-368 (1983). Therefore, claimant can seek a more definite opinion
from Dr. Soteres and submit this evidence to the district director on modification.
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NOTE: This is an UNPUBLISHED BLA Document. To Top of Document
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