BRB No. 02-0142 BLA
JESSE GNEGY )
)
Claimant-Petitioner )
)
v. )
)
JONES TRUCKING, INCORPORATED )
)
and )
)
WEST VIRGINIA COAL-WORKERS' ) PNEUMOCONIOSIS FUND )
)
Employer/Carrier- )
Respondents )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:06/28/2002
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Pamela Lakes Wood, Administrative Law Judge, United States
Department of Labor.
Jack R. Turney, Oakland, Maryland, for claimant.
Robert Weinberger (West Virginia Coal-Workers' Pneumoconiosis Fund), Charleston, West Virginia, for
carrier.
Before: SMITH, McGRANERY, and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant[1] appeals the Decision and Order (00-BLA-0210) of
Administrative Law Judge Pamela Lakes Wood denying benefits on a miner's 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).[2] Initially, the administrative law judge
noted that employer stipulated that the miner currently has fifteen years of coal mine employment, Hearing
Transcript at 6-7. Decision and Order at 3 n.4, 4. Applying the regulations at 20 C.F.R. Part 718, the
administrative law judge found that claimant failed to establish the existence of pneumoconiosis pursuant to 20
C.F.R. §718.202(a) and total respiratory disability pursuant to 20 C.F.R. §718.204(b). Decision and
Order at 8-10. Accordingly, benefits were denied.
On appeal, claimant generally asserts that the medical evidence in this case is sufficient to establish he has
a totally disabling respiratory impairment. Claimant's Brief at 1-2. Carrier has responded, urging affirmance of
the administrative law judge's denial of benefits. The Director, Office of Workers' Compensation Programs, has
declined to participate in this appeal.[3]
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 his brief, claimant states that he has provided medical evidence that is sufficient to qualify him for an
award based on a twenty-five percent pulmonary impairment attributable to his occupational pneumoconiosis
because such a finding was made by the West Virginia Occupational Pneumoconiosis Board.[4] Claimant's Brief at 1. Claimant additionally notes that he testified at the
hearing that he continues to work in coal mine employment as a truck driver, but he is unsure how much longer
he can continue that type of work,[5] Hearing Transcript at 10-12, 14.
Claimant's Brief at 1. Claimant, therefore, concludes that he has produced evidence which is sufficient to
establish his total disability. Claimant's Brief at 2. Claimant fails to state with specificity any alleged error made
by the administrative law judge in his consideration of the evidence at Section 718.204(b)(2)(iv), but merely
recites the evidence contained in the record. Since claimant has failed to provide a basis upon which the Board
may review the administrative law judge's weighing of the medical opinion evidence regarding total respiratory
disability, we affirm the administrative law judge's Section 718.204(b)(2)(iv) finding. See 20 C.F.R.
§718.204(b)(2)(iv); Sarf v. Director, OWCP, 10 BLR 1-119 (1987); Fish v. Director,
OWCP, 6 BLR 1-107 (1983); see also Cox v. Director, OWCP, 791 F.2d 445, 9 BLR 2-46
(6th Cir. 1986).
Inasmuch as we affirm the administrative law judge's finding that claimant failed to establish totally
respiratory disability, see 20 C.F.R. §718.204(b), a requisite element of entitlement under Part 718,
see Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR
1-1 (1986) (en banc), we also affirm her denial of benefits.
Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1)Claimant is Jesse Gnegy, the miner, who filed his present claim for benefits on November
16, 1998. Director's Exhibit 1.
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2)The Department of Labor 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 20 C.F.R. Parts 718, 722, 725 and 726 (2001). All citations to the regulations, unless otherwise noted,
refer to the amended regulations.
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3)We affirm the administrative law judge's findings pursuant to 20 C.F.R.
§718.204(b)(2)(i)-(iii) as they are unchallenged on appeal. See Coen v. Director, OWCP,
7 BLR 1-30 (1984); Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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4)In order to establish entitlement in a living miner's claim pursuant to 20 C.F.R. Part 718,
a claimant must establish that he has a totally disabling respiratory impairment. See 20 C.F.R.
§718.204(b); Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP,
9 BLR 1-1 (1986) (en banc).
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5)As the administrative law judge noted, claimant testified that currently he is working for
employer, performing the same functions as he did two years ago. Hearing Transcript at 10-12, 14.
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NOTE: This is an UNPUBLISHED BLA Document.
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