BRB No. 00-0661 BLA
JOHN SELAK )
)
Claimant-Respondent )
)
v. )
)
WYOMING POCAHONTAS LAND ) DATE ISSUED:05/31/2001
COMPANY )
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order on Remand - Denial of Employer's
Request for New Medical Examination and Modification of Thomas F.
Phalen, Jr., Administrative Law Judge, United States Department of
Labor.
Eileen S. Goodin (Barkan & Neff), Columbus, Ohio, for claimant.
John G. Paleudis (Hanlon, Duff, Paleudis & Estadt Co., LPA), St.
Clairsville, Ohio, for employer.
Mary Forrest-Doyle (Judith E. Kramer, Acting Solicitor of Labor; 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, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Employer[1] appeals the Decision and Order
on Remand - Denial of Employer's Request for New Medical Examination and
Modification (1996-BLA-1233) of Administrative Law Judge Thomas F. Phalen, Jr.,
issued 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).[2] This case has a lengthy procedural
history.[3] Employer sought modification of
claimant's award of benefits herein under the interim criteria, 20 C.F.R. Part 727,
upon becoming aware that claimant was employed as a part-time driver by the Inn at
SharonBrooke (SharonBrooke), an assisted living facility, while claimant was
receiving black lung benefits. Employer asserted that claimant was no longer
disabled in view of this employment, and employer requested that the Department of
Labor (DOL) order claimant to undergo a new medical examination to determine the
current nature and extent of his pneumoconiosis and epilepsy, as it was previously
found that claimant's pneumoconiosis alone was not totally disabling, but that
claimant suffered from epilepsy-induced blackouts which prevented him from
returning to coal mine employment and thus precluded a finding of rebuttal at 20
C.F.R. §727.203(b)(2) pursuant to the standard established in York v.
Benefits Review Board, 819 F.2d 134, 10 BLR 2-99 (6th Cir. 1987). The district
director subsequently determined that claimant's employment with SharonBrooke did
not constitute comparable employment, and thus declined to either schedule claimant
for a medical examination or modify the award of benefits. This case was then
scheduled for a formal hearing before Administrative Law Judge Thomas F. Phalen,
Jr.
In a Decision and Order issued on March 17, 1997, the administrative law judge
denied employer's request for modification as he found that employer failed to
establish a mistake in a previous determination of fact or a change in conditions
pursuant to 20 C.F.R. §725.310. The administrative law judge further found
that the decision as to whether to order claimant to undergo a physical examination
was within the discretion of the district director. Accordingly, the award of
benefits was affirmed.
On appeal, the Board vacated the administrative law judge's Decision and Order
denying modification, and remanded the case to the administrative law judge in
order for him to consider de novo employer's request for a re-examination
of claimant pursuant to 20 C.F.R. §§718.404(b) and 725.310(b).[4] The Board instructed the administrative law
judge to make a specific determination regarding whether employer has raised a
credible issue pertaining to the validity of the original adjudication of
disability so that an order compelling claimant to submit to examinations or tests
would be in the interest of justice. Selak v. Wyoming Pocahontas Land Co.,
21 BLR 1-173 (1999)(en banc).
On remand, the administrative law judge found that it would not be in the
interest of justice to compel claimant to submit to a re-examination, and that
modification was not appropriate because employer failed to establish either a
mistake in a determination of fact or a change in conditions. In the present
appeal, employer challenges the administrative law judge's findings pursuant to
Section 725.310 and his denial of employer's request for a new medical examination
and testing of claimant. Claimant responds, urging affirmance. The Director,
Office of Workers' Compensation Programs (the Director), has declined to address
the merits of this appeal.
Pursuant to a lawsuit challenging revisions to forty-seven of the regulations
implementing the Act, the United States District Court for the District of Columbia
granted limited injunctive relief and stayed, for the duration of the lawsuit, all
claims pending on appeal before the Board under the Act, except for those in which
the Board, after briefing by the parties to the claim, determines that the
regulations at issue in the lawsuit will not affect the outcome of the case.
National Mining Association v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9,
2001)(order granting preliminary injunction). In the present case, the Board
established a briefing schedule by order issued on March 2, 2001, to which employer
and the Director have responded, asserting that the regulations at issue in the
lawsuit do not affect the outcome of this case. Claimant has not responded to the
Board's order.[5] Based on the briefs submitted
by employer and the Director, and our review, we hold that the disposition of this
case is not impacted by the challenged regulations. Therefore, the Board will
proceed to adjudicate the merits of 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 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).
Employer asserts that the evidence it produced in support of modification,
i.e., claimant's blackout-free employment between April 1988 and April 1994
as a driver with SharonBrooke and claimant's testimony that his epilepsy is
currently controlled by medication, demonstrates that claimant is no longer
disabled by his epileptic blackouts, thus establishing both a change in conditions
since the issuance of the 1981 and 1982 medical reports finding claimant totally
disabled from such blackouts, and a mistake of fact in the prior determination that
subsection (b)(2) rebuttal was precluded pursuant to the standard established in
York, supra. Employer also maintains that, because this evidence calls into
question the validity of the award and a new medical examination is necessary to
ascertain claimant's continued eligibility for benefits, the administrative law
judge abused his discretion in declining to order a re-examination of claimant.
We disagree.
After consideration of the administrative law judge's Decision and Order, the
arguments raised on appeal, and the evidence of record, we conclude that the
Decision and Order of the administrative law judge is supported by substantial
evidence in the record considered as a whole, and that there is no reversible error
contained therein. The administrative law judge determined that claimant's part-time employment with SharonBrooke entailed driving elderly individuals to and from
their doctors' appointments and occasionally helping them in and out of a car,
whereas claimant's last coal mine employment, in his full-time position as
underground maintenance foreman, required a substantial amount of physical
exertion. Decision and Order on Remand at 4; Director's Exhibit 36 [1983 Hearing
Transcript] at 21-23; Director's Exhibit 51; [1996] Hearing Transcript at 28-31,
38. Contrary to employer's arguments, the administrative law judge reasonably
found that the skills and abilities required for claimant's employment with
SharonBrooke were not similar or equivalent to those required as an adjunct to his
foreman duties in the mines, and therefore did not constitute comparable and
gainful employment or show that claimant could perform his usual coal mine
employment.[6] Decision and Order on Remand at 5-6, 9; see Ratliff v. Benefits Review Board, 816 F.2d 1121, 10 BLR 2-76 (6th
Cir. 1987). The administrative law judge also reviewed claimant's testimony and
permissibly concluded that it did not establish that claimant's epileptic blackouts
were completely controlled and no longer disabling, as he found claimant's
testimony that his medication dosage was properly adjusted "in the eighties
sometime" was imprecise, Hearing Transcript at 49; claimant suffered at least one
blackout following his employment with SharonBrooke in 1994, Hearing Transcript at
41; and the possibility of blackouts still existed, as there was no evidence that
claimant did not suffer the underlying condition of epilepsy at the time of the
award and at present, and claimant still had to take a proper dosage of medication
to control his blackouts.[7] Decision and Order
on Remand at 5-6, 9-10. The administrative law judge thus acted within his
discretion as trier-of-fact in finding that the evidence submitted by employer in
support of modification was insufficient to establish a mistake in a determination
of fact or a change in conditions,[8] see
Consolidation Coal Co. v. Worell, 27 F.3d 227, 18 BLR 2-290 (6th Cir. 1994),
and did not raise a credible issue pertaining to the validity of the original
adjudication so that an order compelling claimant to submit to examinations or
tests would be in the interest of justice. Decision and Order on Remand at 5-6, 9-10. The administrative law judge's findings pursuant to Section 725.310 and 20
C.F.R. §725.203, 65 Fed. Reg. 80,061 (2000), are supported by substantial
evidence, and thus are affirmed.
Accordingly, the administrative law judge's Decision and Order on Remand -
Denial of Employer's Request for New Medical Examination and Modification is
affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Employer, Wyoming Pocahontas Land Company, was formerly the
Youghiogheny & Ohio Coal Company. See Hearing Transcript at 5.
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2)The Department of Labor (DOL) 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 65 Fed.
Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts 718, 722, 725 and 726).
DOL, however, has discontinued publication of the interim criteria at 20 C.F.R.
Part 727, pursuant to which the underlying claim herein, filed on September 21,
1977, Director's Exhibit 1, was adjudicated. See 20 C.F.R. §725.4(d),
65 Fed. Reg. 80,058 (2000). Additionally, the amendments to the regulation at 20
C.F.R. §725.310 do not apply to this claim, as employer's request for
modification was pending on January 19, 2001. See 20 C.F.R. §725.2(c),
65 Fed. Reg. 80,057 (2000). Consequently, all citations to the regulations herein,
unless otherwise noted, refer to the regulations as set forth in 20 C.F.R., parts
500 to end, edition revised as of April 1, 1999.
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3)Claimant's award of benefits was affirmed by the Board, see
Selak v. Youghiogheny & Ohio Coal Co., BRB No. 92-1281 BLA (Nov. 3,
1993)(unpub.), Director's Exhibit 43, and by the United States Court of Appeals for
the Sixth Circuit, within whose jurisdiction this case arises, see Youghiogheny
& Ohio Coal Co. v. Selak, No. 93-4370 (6th Cir., Aug. 29, 1995) (unpub);
Director's Exhibit 44. The procedural history of this case is more fully set forth
therein and in Selak v. Wyoming Pocahontas Land Co., 21 BLR 1-173
(1999)(en banc).
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4)In amending the regulations implementing the Act, DOL deleted 20
C.F.R. §718.404 and incorporated its provisions into 20 C.F.R. §725.203,
65 Fed. Reg. 80,061 (2000). The pertinent subsections of the regulation now
provide:
(c) An individual who has been finally adjudged to be totally
disabled due to pneumoconiosis and is receiving benefits under the
Act shall promptly notify the Office and the responsible coal mine
operator, if any, if he or she engages in his or her usual coal
mine work or comparable and gainful work.
(d) Upon reasonable notice, an individual who has been finally adjudged
entitled to benefits shall submit to any additional tests or
examinations the Office deems necessary, if an issue arises pertaining
to the validity of the original award.
20 C.F.R. §725.203(c), (d),65 Fed. Reg. 80,061 (2000).
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5)Pursuant to the Board's instructions, the failure of a party to
submit a brief within 20 days following receipt of the Board's Order issued on
March 2, 2001, would be construed as a position that the challenged regulations
will not affect the outcome of this case.
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6)Employer argues that claimant's usual coal mine employment duties
were strictly supervisory, and that while the administrative law judge credited
claimant's testimony that his job involved cleaning up cave-ins, fixing batteries
and uncovering buried equipment, Decision and Order on Remand at 4, 9, Director's
Exhibit 36 [1983 Hearing Transcript] at 21-22, claimant additionally testified that
most of the actual labor was performed by claimant's crew, see Director's
Exhibit 36 [1983 Hearing Transcript] at 40. Employer thus asserts that claimant's
ability to drive without suffering blackouts shows that claimant's epilepsy is
controlled by medication and no longer prevents him from performing his supervisory
duties. Contrary to employer's arguments, however, claimant accurately asserts,
and the record reflects, that in addition to his supervisory duties, claimant's job
involved physical duties which included standing, crawling and walking for
approximately six hours per day and occasional lifting. Claimant's Brief at 7;
Director's Exhibit 36 [1983 Hearing Transcript] at 22; Director's Exhibit 51.
Moreover, claimant testified that although he drove a car at the time he was
experiencing frequent blackouts in the mines, he has never suffered a blackout
while driving; rather, his blackouts occurred when he was "extremely exhausted from
working [in the mine]." Hearing Transcript at 38, 49.
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7)We reject, as unsupported by the record, employer's contention
that the administrative law judge ignored or mischaracterized claimant's testimony,
which employer asserts establishes that claimant no longer suffers any actual
impairment from his epilepsy because his blackouts are now controlled by
medication. Employer's Brief at 9-10. Claimant testified that he has been taking
the same medications, but different dosages, for his blackouts since 1972,
Director's Exhibit 36 [1983 Hearing Transcript] at 34; Hearing Transcript at 35;
that the medication did not control his blackouts, which he experienced every few
weeks between 1972 and 1977, while he was engaged in coal mine employment, Hearing
Transcript at 36-37, 49; and that the adjustments in his dosages have subsequently
almost eliminated his blackouts, Hearing Transcript at 40-42, 49. The mere fact
that claimant's current dosage has greatly reduced the frequency of his blackouts,
however, does not establish that the same dosage would prevent him from
experiencing blackouts if he engaged in his usual coal mine employment or similar
work.
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8)We reject employer's argument that, since claimant's testimony
reflects that he no longer suffers epileptic blackouts, the administrative law
judge, consistent with Youghiogheny & Ohio Coal Co. v. Milliken, 200 F.3d
942, 22 BLR 2-46 (6th Cir. 1999), was required to review and reweigh the
evidence of record de novo to determine whether claimant's pneumoconiosis
alone precludes a finding of subsection (b)(2) rebuttal. The administrative law
judge reasonably found that the new evidence submitted in support of modification
was insufficient to establish that claimant was not disabled by epileptic
blackouts, and the medical opinions of record were previously found insufficient
as a matter of law to establish that claimant was not disabled by any cause under
the standard enunciated by the Sixth Circuit in York, supra. See
Youghiogheny & Ohio Coal Co. v. Selak, No. 93-4370 (6th Cir., Aug. 29,
1995)(unpub); Director's Exhibit 44; Selak v. Youghiogheny & Ohio Coal Co.,
BRB No. 87-711 BLA (July 31, 1989)(unpub.); Director's Exhibit 40.
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NOTE: This is an UNPUBLISHED BLA Document.
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