BRB No. 02-0854 BLA
BOBBY THORNTON KING )
)
Claimant-Petitioner )
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v. )
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TUG BOAT TRUCKING ) DATE ISSUED:06/26/2003
)
and )
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FIDELITY and CASUALTY COMPANY )
of NEW YORK )
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Employer/Carrier- )
Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order - Denial of Benefits of Thomas F. Phalen, Jr.,
Administrative Law Judge, United States Department of Labor.
Billy J. Moseley (Webster Law Offices), Pikeville, Kentucky,
for claimant.
Philip J. Reverman, Jr. (Boehl, Stopher & Graves, LLP),
Louisville, Kentucky, for employer.
Before: McGRANERY, HALL, and GABAUER, Administrative Appeals
Judges.
PER CURIAM:
Claimant appeals the Decision and Order - Denial of Benefits (01-BLA-00820) of Administrative Law Judge Thomas F. Phalen, Jr. rendered on
claimant's request for modification of the denial of the duplicate 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] Claimant filed his
first claim for benefits on March 11, 1996. Director's Exhibit 27-1. That
claim was denied on August 1, 1996, for failure to establish the existence
of pneumoconiosis and total disability. Claimant filed the instant,
duplicate claim on March 29, 2000, Director's Exhibit 1, which was denied
by the district director on July 17, 2001 for failure to establish the
existence of pneumoconiosis and total disability, Director's Exhibit 18.
Claimant requested modification of that denial on September 7, 2000,
submitting an x-ray interpreted as negative by Dr. Sargent and the results
of breathing tests which exceeded the disability standards. The district
director denied claimant's request for modification because claimant failed
to establish the existence of pneumoconiosis or total disability.
Director's Exhibits 21, 25. A formal hearing was held on February 6, 2002.
Subsequent to that hearing, the administrative law judge found twenty-three
and one-half years of coal mine employment established and adjudicated the
claim pursuant to 20 C.F.R. Part 718 based on the date of filing. Decision
and Order at 4. The administrative law judge further found that the
evidence failed to establish the existence of pneumoconiosis and a totally
disabling respiratory impairment pursuant to Sections 718.202(a) and
718.204(b), elements previously adjudicated against claimant, and thus
found that claimant failed to establish a basis for modification.
Accordingly, benefits were denied.
On appeal, claimant contends that the administrative law judge erred
in not finding the existence of pneumoconiosis and total disability
established. Employer responds, urging affirmance of the denial of
benefits. The Director, Office of Workers' Compensation Programs, is not
participating in this appeal.
The Board's scope of review is defined by statute. If the
administrative law judge's findings of fact and conclusions of law are
rational, supported by substantial evidence, and in accordance with 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).
In order to establish entitlement to benefits in a living miner's
claim pursuant to 20 C.F.R. Part 718, claimant must establish that he
suffers from pneumoconiosis, that the pneumoconiosis arose out of coal mine
employment, and that the pneumoconiosis is totally disabling. See
20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to
establish any of these elements precludes entitlement. Trent v.
Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9
BLR 1-1 (1986)(en banc).
Where a district director has denied modification of a duplicate
claim, the administrative law judge should consider whether the newly
submitted evidence is sufficient to establish a material change in
conditions pursuant to 20 C.F.R. §725.309(d)(2000), rather than
determining whether claimant has established a basis for modification of
the district director's denial of his duplicate claim. The administrative
law judge may properly review, de novo, the issue of whether the
evidence establishes a material change in conditions. Hess v. Director,
OWCP, 21 BLR 1-141 (1998). A material change in conditions is
established if one of the elements previously adjudicated against claimant
is established. See Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR
2-10 (6th Cir. 1994).
Claimant contends that the administrative law judge erred in not
considering the positive x-ray readings of Drs. Anderson, Baker, and Lane,
B-readers, which were submitted in support of claimant's first claim, when
he found that the existence of pneumoconiosis was not established by x-ray
evidence.[2]
In considering the x-ray evidence submitted since the denial of
claimant's first claim on August 1, 1996, the administrative law judge
correctly found it insufficient to establish the existence of
pneumoconiosis based on the numerical superiority of negative readings by
physicians with superior qualifications. Director's Exhibits 13, 14, 16,
23, 24, 27-13; Employer's Exhibits 1-3; Decision and Order at 11; Staton
v. Norfolk & Western Ry. Co., 65 F.3d 55, 19 BLR 2-271 (6th Cir. 1995);
Woodward v. Director, OWCP, 991 F.2d 314, 17 BLR 2-77 (6th Cir.
1993). Accordingly, we affirm the administrative law judge's finding that
the x-ray evidence submitted subsequent to the denial of claimant's first
claim failed to establish the existence of pneumoconiosis pursuant to
Section 718.202(a)(1).[3]
Contrary to claimant's argument, the administrative law judge properly
considered the x-ray evidence submitted subsequent to the denial of
claimant's first claim when he determined that claimant failed to establish
a reason to modify the denial of his duplicate claim. See Hess,
supra; Ross, supra. Accordingly, claimant's argument
that the existence of pneumoconiosis was established based on three
positive x-ray interpretations submitted in support of his first claim for
benefits is rejected. See Hess, supra; see also Ross,
supra.
Claimant next contends that the administrative law judge should have
found the existence of pneumoconiosis established based on the opinions of
Drs. Rogers and Ammisetty. We disagree. Contrary to claimant's argument,
the administrative law judge properly accorded little weight to the
opinions of Drs. Rogers and Ammisetty because Dr. Rogers did not support
his opinion with adequate documentation and because Dr. Ammisetty did not
diagnose the existence of the disease although he noted that claimant had
been diagnosed with pneumoconiosis. Director's Exhibit 23; Claimant's
Exhibits 1, 2. The administrative law judge accorded greater weight to the
opinions of Drs. Dahhan and Younes, finding no pneumoconiosis, because they
were better reasoned and documented, and because Drs. Dahhan and Younes had
better qualifications than Drs. Rogers and Ammisetty. This was rational.
See Jericol Mining, Inc. v. Napier, F.3d , 2002 WL 198821
(6th Cir. Aug. 30, 2002); Wolf Creek Colleries v. Director, OWCP
[Stephens], 298 F.3d 511, BLR (6th Cir. 2002); Peabody Coal
Co. v. Groves, 277 F.3d 834, 22 BLR 2-320 (6th Cir. 2002); Clark v.
Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Dillon
v. Peabody Coal Co., 11 BLR 1-113 (1988); Fields v. Island Creek
Coal Co., 10 BLR 1-19 (1987); King v. Consolidation Coal Co.,
8 BLR 1-262 (1985). Accordingly, we affirm the administrative law judge's
finding that the medical opinion evidence, submitted subsequent to the
denial of the first claim, failed to establish the existence of
pneumoconiosis. See Hess, supra; see also Ross,
supra. Regarding the administrative law judge's finding that
claimant failed to establish total disability, we need not address
claimant's general contention that the evidence of record is sufficient to
establish total disability as it is not sufficiently briefed, Cox v.
Benefits Review Board, 791 F.2d 445, 9 BLR 2-46 (6th Cir. 1986);
Sarf v. Director, OWCP, 10 BLR 1-119 (1987). The administrative law
judge's finding regarding total disability is, therefore, affirmed.
Cox, supra; Sarf, supra. Accordingly, the administrative law judge's Decision and Order- Denial of Benefits
is affirmed.
SO ORDERED.
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
PETER A. GABAUER, Jr.
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 20 C.F.R. Parts 718, 722, 725 and 726 (2002). All citations to
the regulations, unless otherwise noted, refer to the amended
regulations.
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2) These x-rays were submitted in support of claimant's
first claim, which was denied by the district director for failure to
establish the existence of pneumoconiosis and total disability. As
summarized by the administrative law judge, in addition to the positive
interpretations by Dr. Anderson, Baker and Lane, the x-ray evidence
submitted in support of the first claim also included negative
interpretations by Drs. Whaley and Rogers and by Drs. Sargent, Wiot, and
West, Board-certified, B-readers. Decision and Order at 8.
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3) The administrative law judge's finding that the
existence of pneumoconiosis was not established at 20 C.F.R. 718.202(a)(2)
and (3) is affirmed as unchallenged on appeal. Skrack v. Island Creek
Coal Co., 6 BLR 1-710 (1983).
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NOTE: This is an UNPUBLISHED BLA Document.
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