BRB Nos. 93-1480 BLA
and
93-1480 BLA-A
MICHAEL EVOSEVICH )
)
Claimant-Petitioner )
)
v. )
)
CONSOLIDATION COAL COMPANY )
) DATE ISSUED:11/30/1994
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 Thomas M. Burke, Acting District Director,
United States Department of Labor.
Gregory C. Hook (Hook & Hook), Waynesburg, Pennsylvania, for claimant.
William S. Mattingly (Jackson & Kelly), Morgantown, West Virginia, for
employer.
Nancy G. Feeney (Thomas S. Williamson, Jr., 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: , , and , Administrative Appeals Judges.
PER CURIAM:
Claimant appeals, and employer cross-appeals, the Decision and Order denying
benefits and the Decision and Order denying Motion for Reconsideration (91-BLA-2165) of Administrative Law Judge Thomas M. Burke 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). Claimant filed his first
claim for benefits on March 2, 1979 and it was denied by Administrative Law Judge
Reno E. Bonfanti on September 29, 1982. This denial was affirmed by the Board on
July 17, 1985 and by the United States Court of Appeals for the Third Circuit on
May 5, 1986. Claimant filed the present claim for benefits on October 20, 1986.
The administrative law judge considered this claim to be a request for modification
as it was filed within a year of the final denial of the prior claim. Upon
considering the request for modification, the administrative law judge stated that
claimant submitted three medical opinions diagnosing total disability from
pneumoconiosis and determined that claimant established a material change in
conditions. The administrative law judge then considered the evidence submitted
subsequent to the final denial and determined that claimant established invocation
of the interim presumption pursuant to 20 C.F.R. §727.203(a)(2). The
administrative law judge next considered the newly submitted evidence and found
that employer established rebuttal of the interim presumption pursuant to 20 C.F.R.
§727.203(b)(3) and (4). Accordingly, benefits were denied. Claimant then
filed a motion for reconsideration of the administrative law judge's Decision and
Order denying benefits, which was denied. On appeal, claimant contends that the
administrative law judge erred in failing to find that claimant established
invocation of the interim presumption pursuant to 20 C.F.R. §727.203(a)(1) and
in finding that employer established rebuttal of the interim presumption pursuant
to 20 C.F.R. §727.203(b)(3) and (4). On cross-appeal, employer contends that
the administrative law judge erred in finding that claimant's second claim is a
request for modification as the mere filing of an application for benefits is
insufficient to request modification under the Act. Additionally, employer
responds in support of the remainder of the administrative law judge's Decision and
Order. The Director, Office of Workers' Compensation Programs (the Director),
responds to employer's cross-appeal in support of the administrative law judge's
finding that claimant's second claim constitutes a request for modification.
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).
Initially, it is necessary to address employer's cross-appeal. Employer
contends that claimant's second claim should be considered a duplicate claim
because claimant has neither contended that there has been a change in condition
nor a mistake in a determination of fact. However, the Board has previously
addressed this issue and held that if claimant's duplicate claim was filed within
one year of the issuance of the final denial of the prior claim, the duplicate
claim constitutes a timely request for modification of claimant's initial claim
pursuant to 20 C.F.R. §725.310. See Stanley v. Betty B Coal Co., 13
BLR 1-72 (1990); Garcia v. Director, OWCP, 12 BLR 1-24 (1988). In the
present case, claimant's first claim was finally denied by the United States Court
of Appeal for the Third Circuit on May 5, 1986. Claimant filed his second claim
for benefits on October 20, 1986, within one year of the prior denial. Thus, the
administrative law judge's finding that claimant's second claim is a timely request
for modification of the prior denial pursuant to Section 725.310 is affirmed.
After determining that claimant's second claim for benefits is a request for
modification, the administrative law judge stated that claimant must either show
a change in conditions or a mistake in a determination of fact for his claim to be
reconsidered pursuant to 20 C.F.R. Part 727. The administrative law judge then
noted that claimant offered the opinions of Drs. Levine, Bobak, and Silverman
diagnosing total disability from pneumoconiosis. The administrative law judge
concluded by stating that the Board has held in Spese v. Peabody Coal
Company, 11 BLR 1-174 (1988), that one medical report diagnosing pneumoconiosis
is sufficient evidence on which to base a finding of a material change in
conditions. See D&O at 12-13. The administrative law judge's findings on
this issue are in error. The Board has held that upon considering a claim pursuant
to Section 725.310, the administrative law judge's role is to consider any
contested issue de novo. See Kovac v. BCNR Mining Corp., 14 BLR 1-156 (1990). In this instance, the contested issues are whether there has been a
change in conditions or mistake in a determination of fact. See Kovac,
supra. Thus, the administrative law judge erred in stating that there is
sufficient evidence to establish a "material change in conditions", which is the
standard applied to duplicate claims pursuant to 20 C.F.R. §725.309, and in
failing to make findings as to whether claimant established a change in conditions
or mistake in a determination of fact pursuant to Section 725.310. As a result,
the administrative law judge's finding that claimant established a material change
in conditions is vacated and the case is remanded for the administrative law judge
to make the necessary findings pursuant to Section 725.310.
Additionally, the Board has held that, in determining whether claimant has
established a change in conditions pursuant to Section 725.310, the administrative
law judge is obligated to perform an independent assessment of the newly submitted
evidence, considered in conjunction with the previously submitted evidence, to
determine if the weight of the new evidence is sufficient to establish the element
or elements of entitlement which defeated entitlement in the prior decision.
See Nataloni v. Director, OWCP, 17 BLR 1-82 (1993). In the present claim,
the administrative law judge erroneously failed to consider all of the evidence of
record. In making his findings pursuant to Section 727.203, the administrative law
judge merely considered the evidence submitted subsequent to the May 5, 1986
decision of the Court of Appeals and ignored the evidence submitted with claimant's
prior claim. The evidence submitted with claimant's prior claim includes numerous
positive x-ray interpretations and several medical opinions which diagnose total
disability due to pneumoconiosis. The administrative law judge erred in failing
to consider the newly submitted evidence, in conjunction with the previously
submitted evidence, to determine if the weight of the new evidence is sufficient
to establish the element or elements of entitlement which defeated entitlement in
the prior decision. See Nataloni, supra. As a result, the
administrative law judge's findings pursuant to Section 727.203(a) and (b) are
vacated and the case is remanded for the administrative law judge to properly
consider all of the evidence of record when considering claimant's request for
modification pursuant to Section 725.310. Further, as the administrative law
judge's findings pursuant to Section 727.203 are vacated, the Board need not
address claimant's contentions of error on appeal.
Accordingly, the administrative law judge's Decision and Order denying Motion
for Reconsideration is vacated and the administrative law judge's Decision and
Order denying benefits is affirmed in part, vacated in part, and remanded for
further consideration consistent with this opinion.
SO ORDERED.
Administrative Appeals Judge
Administrative Appeals Judge
Administrative Appeals Judge
NOTE: This is an UNPUBLISHED BLA Document.
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