BRB No. 01-0385 BLA
DAVID H. FETTEROLF, SR. )
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Claimant-Petitioner )
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v. )
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DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:01/08/2002
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Respondent ) DECISION and ORDER
Appeal of the Decision and Order-Denial of Benefits On Remand From The
Benefits Review Board of Ralph A. Romano, Administrative Law Judge,
United States Department of Labor.
Carolyn M. Marconis, Pottsville, Pennsylvania, for claimant.
Helen H. Cox (Howard M. Radzely, Acting 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: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order - Denial of Benefits On Remand From
The Benefits Review Board (98-BLA-01349) of Administrative Law Judge Ralph A.
Romano 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).[1] This case is before the Board for
a second time. Initially, the administrative law judge found that claimant
established a coal mine employment history of over twenty-four years and that the
Director, Office of Workers' Compensation Programs (the Director), conceded that
the existence of pneumoconiosis was established. The administrative law judge
further determined that claimant's pneumoconiosis arose out of coal mine employment
and that the medical opinions established total disability due to pneumoconiosis.
Accordingly, benefits were awarded. Subsequent to an appeal by the Director, the
Board vacated the award of benefits. Fetterolf v. Director, OWCP, BRB No.
99-0959 BLA (Jun. 9, 2000)(unpublished). The Board held that the administrative
law judge's consideration of the medical opinion evidence did not comply with the
Administrative Procedure Act, 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),
which requires that every adjudicatory decision be accompanied by a statement of
findings of fact and conclusions of law and the basis therefor on all material
issues of fact, law or discretion presented in the record. Fetterolf, slip
op. at 2-4. Accordingly, the Board vacated the administrative law judge's findings
at 20 C.F.R. §§718.204(b), (c)(2000) and remanded the claim for further
consideration of the medical opinions relevant to those sections, Fetterolf,
slip op. at 4.[2] On remand, the administrative
law judge concluded that claimant was unable to demonstrate the presence of a
totally disabling respiratory impairment by the medical opinion evidence. Decision
and Order on Remand at 2-5. Accordingly, benefits were denied.
On appeal, claimant contends that the administrative law judge erred in
failing to find the presence of a totally disabling respiratory impairment due to
pneumoconiosis. The Director responds urging affirmance of the denial of benefits.
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 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 & Grylls Associates,
Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits under 20 C.F.R. Part 718,
claimant must prove that he suffers from pneumoconiosis, that the pneumoconiosis
arose out of coal mine employment, and that the pneumoconiosis is totally
disabling. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to
establish any one of these elements precludes entitlement. See Trent v.
Director, OWCP, 11 BLR 1-26 (1987); Gee v. W.G. Moore & Sons, 9 BLR 1-4
(1986)(en banc); Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en
banc).
Claimant contends that the administrative law judge erred in crediting the
medical opinion of Dr. Mariglio, that claimant suffered no impairment and
demonstrated normal cardiopulmonary function, Director's Exhibit 11, over the
opinion of Dr. Kraynak, that claimant was totally and permanently disabled due to
pneumoconiosis arising out of coal mine employment, Claimant's Exhibit 2. Claimant
asserts that Dr. Mariglio's opinion is flawed because the physician failed to
diagnose the presence of pneumoconiosis and presented his opinion in a cursory
manner which provides little basis for his medical conclusion. On the other hand,
claimant asserts that, Dr. Kraynak's medical opinion diagnosed the presence of
pneumoconiosis and is based on a thorough review of all relevant evidence.
Claimant thus argues that Dr. Kraynak's opinion is entitled to greater weight and
that the opinion demonstrates total disability due to pneumoconiosis.
In finding that claimant failed to demonstrate the presence of a totally
disabling respiratory impairment pursuant to medical opinion evidence, the
administrative law judge concluded that the opinion of Dr. Mariglio was entitled
to greater weight than the opinion of Dr. Kraynak. Decision and Order on Remand
at 3. In a permissible exercise of his discretion, the administrative law judge
accorded greater weight to the opinion of Dr. Mariglio based on his superior
credentials as a pulmonary specialist. See Martinez v. Clayton Coal Co., 10
BLR 1-24 (1987); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985); see
also McMath v. Director, OWCP, 12 BLR 1-6 (1988). Likewise, the
administrative law judge permissibly determined that Dr. Mariglio's opinion was
best-supported by the underlying objective studies, see Clark v. Karst-Robbins
Coal Co., 12 BLR 1-149 (1989); Peskie v. United States Steel Corp., 8
BLR 1-126 (1985); Lucostic v. United States Steel Corp., 8 BLR 1-46 (1985).
Accordingly, the administrative law judge properly found that the medical opinion
evidence did not establish a totally disabling respiratory impairment, 20 C.F.R.
§718.204(b)(2)(iv). Because claimant has failed to establish the presence of
a totally disabling respiratory impairment, a requisite element of entitlement
pursuant to Part 718, see Trent, supra; Perry, supra,
the administrative law judge's denial of benefits must be affirmed.
Accordingly the administrative law judge's Decision and Order - Denial of
Benefits On Remand From The Benefits Review Board is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1) 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)(to be 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.
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2) The Board affirmed, as unchallenged, the administrative law judge's length of
coal mine employment determination, as well as the findings that claimant's pneumoconiosis arose out of coal
mine employment and that claimant was unable to demonstrate the presence of a totally disabling respiratory
impairment through pulmonary function study evidence, blood gas study evidence or a showing of cor
pulmonale with right-sided congestive heart failure. Fetterolf, slip op. at 2 n.1.
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NOTE: This is an UNPUBLISHED BLA Document.
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