BRB No. 97-0650 BLA
VINSON G. DINGESS )
)
Claimant-Petitioner )
)
v. )
) DATE ISSUED:01/15/1998
WESTMORELAND COAL COMPANY )
)
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order -- Denying Benefits of Edward Terhune
Miller, Administrative Law Judge, United States Department of Labor.
George A. Mills, III, Huntington, West Virginia, for claimant.
Douglas A. Smoot (Jackson & Kelly), Charleston, West Virginia, for the
employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order -- Denying Benefits (95-BLA-1201) of
Administrative Law Judge Edward Terhune Miller rendered on a claim filed pursuant
to the provisions of the Federal Coal Mine Health and Safety Act of 1969, as
amended, 30 U.S.C. §901 et seq. (the Act). A claimant is entitled to
benefits under the Act by establishing that he has pneumoconiosis, that his
pneumoconiosis arose out of coal mine employment, and that he is totally disabled
by the disease. 30 U.S.C. §901; Mullins Coal Co., Inc. of Virginia v. Director, OWCP, 484 U.S. 135, 141, 11 BLR 2-1, 2-5 (1987), reh'g
denied, 484 U.S. 1047 (1988); Doss v. Director, OWCP, 53 F.3d 654, 658,
19 BLR 2-181, 2-190 (4th Cir. 1995).
Claimant filed for benefits under the Act on May 9, 1994. Director's Exhibit
1. This claim was administratively approved by the Office of Workers' Compensation
Programs, Director's Exhibits 15, 16, 21, and employer both controverted liability
for benefits and requested a formal hearing. A hearing was conducted on October
25, 1995 by Administrative Law Judge Edward Terhune Miller. On December 31, 1996
the administrative law judge issued a Decision and Order denying the claim, finding
that claimant failed to establish the existence of pneumoconiosis or that his
pulmonary disability was due to pneumoconiosis. This appeal followed.
On appeal, claimant contends that the administrative law judge erred by
failing to consider his award for occupational pneumoconiosis from the State of
West Virginia, and otherwise generally avers that the evidence of record
establishes his entitlement to benefits. Employer has filed a response to
claimant's appeal, urging that the Board affirm the Decision and Order.[1]
The Board's scope of review is defined by statute. If the findings of fact
and conclusions of law of the administrative law judge 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 by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
Upon consideration of the administrative law judge's Decision and Order, the
administrative record as a whole, and the pleadings submitted by the parties, we
conclude that the Decision and Order is supported by substantial evidence, contains
no reversible error, and accords with applicable law. In the alternative, we
conclude that, other than raising the administrative law judge's failure to
consider his state worker's compensation award for occupational pneumoconiosis,
claimant has failed adequately to challenge the administrative law judge's findings
of fact and conclusions of law. Accordingly, we affirm the Decision and Order
denying benefits.
Claimant argues that the administrative law judge erred in not considering his
West Virginia Occupational Pneumoconiosis award, stating that award "meets the
requirements of 718.203(b) not considered by the Administrative Law Judge."
Claimant's Brief at 5 (unpaginated). Under the circumstances of this case, this
argument is without merit.
The determinations and findings of a state agency are not binding on the
administrative law judge in a federal black lung case, but should be evaluated and
weighed like any other evidence. 20 C.F.R. §718.206; Moseley v. Peabody
Coal Co., 769 F.2d 357, 361 n. 7, 8 BLR 2-22, 2-26 n. 7 (6th Cir. 1985);
accord Schegan v. Waste Management and Processors, Inc., 18 BLR 1-41, 1-46
(1994); Fields v. Island Creek Coal Co., 10 BLR 1-19, 1-23 n. 1 (1987);
compare Bath Iron Works Corp. v. Director, OWCP, 125 F.3d 18, 20-21, __ BRBS
__, __ (CRT)(1st Cir. 1997)(state compensation finding given collateral estoppel
effect in adjudication under Longshore Act when the litigated issue in both
jurisdictions was identical ); Casey v. Georgetown University Medical
Center, __ BRBS ___, ___, BRB No. 97-975, slip op. 6-7 (Oct. 28, 1997)(same,
but no estoppel accorded on facts of case).
The administrative law judge did not err in neglecting to consider the West
Virginia award under the circumstances found here, because the record contains no
state findings of fact or any medical basis for the occupational pneumoconiosis
award. The record contains a photocopy of a computer printout which sets forth
"award payment summary information," as well as award "calculation" data.
Director's Exhibit 6. This printout does not demonstrate how the state award was
established or whether claimant's state entitlement resulted from an adjudication
or a settlement. Nor does this document articulate which eligibility criteria were
applied. The administrative law judge was therefore not obligated to consider this
evidence.
Claimant also fails adequately to brief any remaining issues relating to the
administrative law judge's consideration of the record, findings of fact or
conclusions of law, and his broad statements of the law and citations to evidence
in support of the claim are insufficient to invoke the Board's review.[2] Other than to argue that the administrative law
judge should have considered his state award, claimant does not adequately
challenge the administrative law judge's findings, under Sections 718.202(a),
718.203(b) and 718.204(b), that he failed to establish the existence of
pneumoconiosis, disability causation, or that employer's evidence was sufficient
to rebut any presumed causal relationship between pneumoconiosis, if found, and
claimant's coal mine employment. Because claimant does not allege any other
specific error made by the administrative law judge based upon the evidence of
record or controlling authority, and does not otherwise "demonstrate with some
degree of specificity the manner in which substantial evidence precludes the denial
of benefits or why the [administrative law judge's] decision is contrary to law,"
Cox v. Benefits Review Board, 791 F.2d 445, 446, 9 BLR 2-46, 2-47-48 (6th
Cir. 1986); Fish v. Director, OWCP, 6 BLR 1-107, 1-109 (1983); see
20 C.F.R. §802.211(b), we conclude that claimant has failed adequately to
challenge the administrative law judge's findings based on his evaluation of the
medical evidence of record. Accordingly, the Decision and Order 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)We affirm as unchallenged the administrative law judge's
findings of 14 years of coal mine employment and the presence of a totally
disabling pulmonary or respiratory impairment. See Skrack v. Island Creek Coal
Co., 6 BLR 1-710, 1-711 (1983); see C.G. Willis, Inc. v. Director, OWCP,
31 F.3d 1112, 1116, 28 BRBS 84, 87 (CRT) (11th Cir. 1994)(assuming as correct
findings not contested on appeal).
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2) For example, claimant points out that the Fourth Circuit has held that chronic obstructive pulmonary
disease constitutes pneumoconiosis. It is well established that an obstructive pulmonary or respiratory
impairment may constitute statutory pneumoconiosis, Warth v. Southern Ohio Coal Co., 60 F.3d 173,
175, 19 BLR 2-265, 2-269 (4th Cir. 1995); see also Mitchell v. OWCP, 25 F.3d 500, 507 n.12, 18 BLR
2-257, 2-273 n.12 (7th Cir 1994); Eagle v. Armco Inc., 943 F.2d 509, 511 n.2, 15 BLR 2-201, 2-203-04
n.2 (4th Cir. 1991); Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 591 (7th Cir. 1985)(chronic obstructive
pulmonary disease meets statutory definition whether or not technical pneumoconiosis), provided the pulmonary
or respiratory disease is significantly related to or substantially aggravated by claimant's coal mine dust
exposure. See 20 C.F.R. §718.201; Stiltner v. Island Creek Coal Co., 86 F.3d 337, 341,
20 BLR 2-246, 2-253 (4th Cir. 1996).
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NOTE: This is an UNPUBLISHED BLA Document. To Top of Document
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