BRB No. 97-0746 BLA
ALFRED E. DELP )
)
Claimant-Petitioner )
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v. )
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ARMCO, INCORPORATED ) DATE ISSUED:01/22/1998
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Employer-Respondent )
)
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 of Michael P. Lesniak,
Administrative Law Judge, United States Department of Labor.
Alfred E. Delp, Beckley, West Virginia, pro se.
Christopher D. Mullen (Shaffer & Shaffer), Madison, West Virginia, for
employer.
Edward Waldman (Marvin Krislov, Deputy Solicitor for National Operations; 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: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative
Appeals Judges.
PER CURIAM:
Claimant, representing himself, appeals the Decision and Order on Remand (94-BLA-1650) of Administrative Law Judge Michael P. Lesniak 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). This case, involving a 1993 duplicate claim,[1] is before the Board
for the second time. In the initial decision, Administrative Law Judge Julius A. Johnson found that claimant
failed to establish a material change in conditions pursuant to 20 C.F.R. §725.309. Accordingly, Judge
Johnson denied benefits. By Decision and Order dated May 30, 1996, the Board vacated Judge Johnson's
finding that the evidence was insufficient to establish a material change in conditions pursuant to 20 C.F.R.
§725.309. Delp v. Armco, Inc., BRB No. 95-1109 BLA (May 30, 1996) (unpublished). The Board
remanded the case for consideration of whether the newly submitted evidence was sufficient to establish a
material change in conditions pursuant to the standard set out in Shupink v. LTV Steel Corp., 17 BLR
1-24 (1992). Id.
Due to Judge Johnson's unavailability, Administrative Law Judge Michael P. Lesniak (the administrative
law judge) reconsidered the claim on remand. The administrative law judge noted that subsequent to the
issuance of the Board's May 30, 1996 Decision and Order, the United States Court of Appeals for the Fourth
Circuit, within whose jurisdiction this case arises, held that in assessing whether a material change in conditions
has been established, an administrative law judge must consider all of the new evidence, favorable and
unfavorable, and determine whether the miner has proven at least one of the elements of entitlement previously
adjudicated against him. The administrative law judge noted that claimant's previous claim was denied because
he failed to establish that he was totally disabled due to pneumoconiosis. Because the administrative law judge
found the newly submitted evidence insufficient to establish total disability due to pneumoconiosis, the
administrative law judge found that claimant failed to establish a material change in conditions pursuant to 20
C.F.R. §725.309. Accordingly, the administrative law judge denied benefits. On appeal, claimant
generally contends that the administrative law judge erred in denying benefits. Employer responds in support
of the administrative law judge's denial of benefits. The Director, Office of Workers' Compensation Programs,
has filed a Motion to Remand, urging the Board to remand the case to the administrative law judge to reconsider
whether the newly submitted evidence is sufficient to establish a material change in conditions pursuant to 20
C.F.R. §725.309.
In an appeal filed by a claimant without the assistance of counsel, the Board considers the issue to be
whether the Decision and Order below is supported by substantial evidence. Stark v. Director, OWCP,
9 BLR 1-36 (1986). We must affirm the findings of the administrative law judge if they are supported by
substantial evidence, are rational, and are in accordance with applicable law. 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).
As the administrative law judge correctly noted in his Decision and Order on Remand, the Fourth Circuit
has held that in assessing whether a material change in conditions has been established, an administrative law
judge must consider all of the new evidence, favorable and unfavorable, and determine whether the miner has
proven at least one of the elements of entitlement previously adjudicated against him. Lisa Lee Mines v.
Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1995), cert. denied, 117 S.Ct. 763
(1997). Administrative Law Judge Edward J. Murty, Jr. denied claimant's prior 1984 claim because he failed
to establish that he was totally disabled pursuant to 20 C.F.R. §718.204(c). Director's Exhibit 40.
Consequently, in order to establish a material change in conditions pursuant to 20 C.F.R. §725.309, the
newly submitted evidence must support a finding of total disability pursuant to 20 C.F.R. §718.204(c).
The administrative law judge properly found that the newly submitted pulmonary function study, a
study conducted on September 8, 1993, was non-qualifying. Decision and Order on Remand at 3; Director's
Exhibit 14. The administrative law judge also correctly noted that the newly submitted arterial blood gas study,
a study conducted on September 8, 1993, produced non-qualifying values. Decision and Order on Remand
at 3; Director's Exhibit 16. The record does not contain any evidence of cor pulmonale with right sided
congestive heart failure. Consequently, the newly submitted evidence is insufficient to establish total disability
pursuant to 20 C.F.R. §718.204(c)(1)-(3).
The Director, however, contends that the administrative law judge, in his consideration of whether
the newly submitted medical opinion evidence was sufficient to establish total disability pursuant to 20 C.F.R.
§718.204(c)(4), mischaracterized Dr. Daniel's opinion. We agree. The administrative law judge indicated
that Dr. Daniel opined that claimant's arterial blood gas study revealed a pulmonary abnormality which "would
exhibit performing heavy manual labor." Decision and Order at 3 (emphasis added). The
administrative law judge found that Dr. Daniel's opinion was insufficient to support a finding of total disability.
Decision and Order at 3. Contrary to the administrative law judge's characterization, Dr. Daniel actually opined
that claimant's arterial blood gas study revealed a pulmonary abnormality which "would inhibit
performing heavy manual labor." Director's Exhibit 15 (emphasis added). Inasmuch as the administrative law
judge's evidentiary analysis does not coincide with the evidence of record, the administrative law judge
committed error. See generally Tackett v. Director, OWCP, 7 BLR 1-703 (1985).
In its May 30, 1996 Decision and Order, the Board noted that Dr. Daniel's opinion, that claimant is totally
disabled for heavy labor, could be sufficient to demonstrate total disability under Section 718.204(c)(4),
depending upon the exertional requirements of claimant's usual coal mine employment. Delp,
supra, slip op. at 3. On remand, the administrative law judge is instructed to consider the exertional
requirements of claimant's usual coal mine work in connection with Dr. Daniel's medical report to determine
whether Dr. Daniel's opinion supports a finding of total disability. See Mazgaj v. Valley Camp Coal Co.,
9 BLR 1-201 (1986); DeFelice v. Consolidation Coal Co., 5 BLR 1-275 (1982). We, therefore,
remand the case to the administrative law judge to reconsider whether the newly
submitted medical opinion evidence is sufficient to support a finding of total
disability pursuant to 20 C.F.R. §718.204(c)(4).
If, on remand, the administrative law judge finds the evidence sufficient to
establish total disability pursuant to 20 C.F.R. §718.204(c)(4), he must then
weigh all the relevant, newly submitted evidence together, both like and unlike,
to determine whether claimant has established total disability pursuant to 20
C.F.R. §718.204(c), see Fields v. Island Creek Coal Co., 10 BLR 1-19
(1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195 (1986), aff'd on
recon. 9 BLR 1-236 (1987) (en banc), thereby establishing a material
change in condition pursuant to 20 C.F.R. §725.309.
Should the administrative law judge, on remand, find the newly submitted
evidence sufficient to establish a material change in conditions pursuant to 20
C.F.R. §725.309, he must consider claimant's 1993 claim on the merits. See
Shupink , supra.
Accordingly, the administrative law judge's Decision and Order on Remand
denying benefits is affirmed in part and vacated in part, and the case is remanded
for further consideration consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)The relevant procedural history of the instant case is as follows: Claimant initially filed
a claim for benefits on July 12, 1973. Director's Exhibit 40. The district director denied the claim on January
16, 1981. Id.
Claimant filed a second claim on July 6, 1984. Director's Exhibit 40. In a Decision and Order dated June
6, 1992, Administrative Law Judge Edward J. Murty, Jr. denied the claim. Id. There is no indication that
claimant took any further action in regard to his 1984 claim. Claimant filed a third claim on July 9, 1993.
Director's Exhibit 1.
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NOTE: This is an UNPUBLISHED BLA Document.
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