BRB No. 97-0645 BLA
GLENDA A. BURGESS )
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Claimant-Petitioner )
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v. )
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JIM WALTER RESOURCES, ) DATE ISSUED:01/28/1998
INCORPORATED )
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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 on Remand - Denying Benefits of
Frederick D. Neusner, Administrative Law Judge, United States Department
of Labor.
Michael E. Bevers (Nakamura & Quinn, LLP), Birmingham, Alabama, for
claimant.
Stephen E. Brown (Maynard, Cooper & Gale, P.C.), Birmingham, Alabama, for
employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order on Remand (93-BLA-1112) of Administrative
Law Judge Frederick D. Neusner denying benefits 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 the second time on modification.
In the initial Decision and Order, Administrative Law Judge James W. Kerr, Jr.
accepted the parties' stipulation of six and three-quarter years of qualifying coal
mine employment, but found that claimant failed to establish the existence of
pneumoconiosis under 20 C.F.R. §718.202(a)(1)-(4). Accordingly, Judge Kerr
denied benefits. On appeal, the Board affirmed the denial of benefits. Burgess
v. Jim Walter Resources, Inc., BRB No. 89-6084 BLA (Oct. 24, 1991) (unpub.).
Within one year of the Board's decision, claimant filed a second application for
benefits on February 27, 1992. Administrative Law Judge Lawrence E. Gray
considered claimant's February 1992 claim as a timely petition for modification
pursuant to 20 C.F.R. §725.310. Judge Gray found that claimant established
the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2), and
thus, that claimant demonstrated a mistake in a determination of fact pursuant to
20 C.F.R. §725.310. After noting that total disability was an uncontested
issue, Judge Gray determined that claimant established that pneumoconiosis caused
her total disability pursuant to 20 C.F.R. §718.204(b). Accordingly, Judge
Gray awarded benefits. Employer appealed, and the Board vacated Judge Gray's
findings pursuant to 20 C.F.R. §§718.202(a)(2), 718.204(b), and 725.310,
and remanded the case for further consideration. Burgess v. Jim Walter
Resources, Inc., BRB No. 94-2634 BLA (Mar. 29, 1995) (unpub.).
On remand, Administrative Law Judge Frederick D. Neusner (the administrative
law judge) found that claimant established the existence of pneumoconiosis pursuant
to 20 C.F.R. §718.202(a)(2) and a mistake in a determination of fact pursuant
to 20 C.F.R. §725.310. The administrative law judge further determined that
claimant's pneumoconiosis arose out of her coal mine employment pursuant to 20
C.F.R. §718.203(c). However, the administrative law judge found that
pneumoconiosis was not a substantially contributing factor to claimant's total
respiratory disability pursuant to 20 C.F.R. §718.204(b). Accordingly, the
administrative law judge denied benefits. On appeal, claimant contends that the
administrative law judge erred in finding the medical evidence insufficient to
establish that pneumoconiosis substantially contributed to her total disability
pursuant to 20 C.F.R. §718.204(b). Employer responds, urging affirmance of
the denial. The Director, Office of Workers' Compensation Programs, has filed a letter
indicating his intention not to participate in this appeal.[2]
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 medical opinions of Drs. Hawkins and May are reasoned
and sufficient to establish disability causation under 20 C.F.R.
§718.204(b).[3] In determining whether claimant
satisfied her burden under Section 718.204(b), the administrative law judge
correctly noted that in accordance with the standard articulated in Lollar v.
Alabama By-Products Corp., 893 F.2d 1258, 13 BLR 2-277 (11th Cir. 1990),[4] claimant must demonstrate that pneumoconiosis is a substantially
contributing factor to her total respiratory disability. Decision and Order on
Remand at 9. Subsequent to the administrative law judge's decision, the United
States Court of Appeals for the Eleventh Circuit, in Black Diamond Coal Mining
Co. v. Director, OWCP [Marcum], 95 F.3d 1079, 20 BLR 2-325 (11th Cir.
1996), explained that a claimant cannot satisfy his/her burden under Lollar
by introducing evidence that pneumoconiosis played more than an "infinitesimal or
de minimis part in claimant's disabling respiratory impairment."
Marcum, 95 F.3d at 1083, 20 BLR at 2-333. The Eleventh Circuit court
held, "A conclusion that a contributing cause played more than an infinitesimal or
de minimis part does not mean that the contributing cause was substantial."
Id.
In analyzing the medical opinion evidence, the administrative law judge noted
that although Dr. May linked claimant's chronic obstructive pulmonary disease to
"both working in the mines and smoking," Director's Exhibit 51, Dr. May's more
thorough, earlier findings "strongly suggest" that claimant's disability is caused
by her thoracotomy and right upper and middle lobectomies, see Director's
Exhibit 10; Decision and Order on Remand at 8. Likewise, the administrative law judge
found Dr. Hawkins' opinion insufficient to establish disability causation because
Dr. Hawkins initially opined that claimant's disability was due to chronic
obstructive lung disease related to her lung resection for bronchogenic carcinoma,
Director's Exhibit 49. Decision and Order on Remand at 9. The administrative law
judge reasonably questioned the reliability of the opinions of Drs. May and
Hawkins, and consequently, we affirm his credibility determinations. See Fagg v. Amax Coal
Co., 12 BLR 1-77 (1988); Calfee v. Director, OWCP, 8 BLR 1-7 (1985).
We, therefore, affirm the administrative law judge's determination that the medical
opinion evidence fails to affirmatively establish that the miner's pneumoconiosis
was a substantially contributing cause of her total disability pursuant to 20
C.F.R. §718.204(b). See Marcum, supra; Lollar, supra.
Inasmuch as claimant failed to satisfy her burden of affirmatively establishing total disability causation
at 20 C.F.R. §718.204(b), a requisite element of entitlement pursuant to Part 718, we affirm the
administrative law judge's finding that claimant is not entitled to benefits. See Trent v. Director,
OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
Accordingly, the administrative law judge's Decision and Order on Remand denying benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
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Footnotes.
1)Claimant filed her application for benefits on April 7, 1988. Director's Exhibit 1.
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2)We affirm the administrative law judge's findings pursuant to 20 C.F.R.
§§718.202(a)(2), 718.203(c) and 725.310 inasmuch as they are unchallenged on appeal. See
Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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3)Reflecting on claimant's most recent examination in June of 1987, Dr. Hawkins,
claimant's treating physician, opined that claimant suffers a significant impairment due to lung dysfunction that
is manifested by chronic obstructive lung disease and coal workers' pneumoconiosis. Claimant's Exhibit 1. On
November 20, 1991, Dr. Hawkins stated that claimant underwent a thoracotomy and right upper and middle
lobectomies for adenocarcinoma in June 1987. Director's Exhibit 49; Claimant's Exhibit 1.
In a letter dated June 30, 1992, Dr. May, another treating physician, opined that claimant has "some
chronic obstructive pulmonary disease from both working in the mines and smoking. She is unable to work due
to shortness of breath because of loss of lung tissue as well as abnormal remaining tissue." Director's Exhibit
51. Dr. May's reports from 1987 are regarding claimant's thoracotomy and lobectomies, but do not comment
on the etiology of claimant's total respiratory disability. Director's Exhibit 10.
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4)Inasmuch as claimant's most recent coal mine employment occurred in the state of
Alabama, the United States Court of Appeals for the Eleventh Circuit has appellate jurisdiction over the instant
claim. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989); Director's Exhibit 2.
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NOTE: This is an UNPUBLISHED BLA Document.
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