BRB No. 94-2178 BLA
                                         

ELMER COLEMAN

          Claimant-Petitioner

     v.

HAWKINS COAL COMPANY

     and

OLD REPUBLIC INSURANCE COMPANY

          Employer/Carrier-
          Respondents

DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

          Party-in-Interest)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)




DATE
ISSUED:09/14/1995   
 













DECISION and ORDER
     Appeal of the Decision and Order of Bernard J. Gilday, Jr.,
     Administrative Law Judge, United States Department of Labor.

     William Lawrence Roberts, Pikeville, Kentucky, for claimant.

     Sirina Tsai (Arter & Hadden), Washington, D.C., for employer.

     Before:  SMITH, BROWN, and DOLDER, Administrative Appeals Judges.


     PER CURIAM:

     Claimant[1]  appeals the Decision and Order
(90-BLA-0581) of Administrative Law Judge Bernard J. Gilday, Jr. 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 is before the Board for the second time.  In Coleman v. Hawkins
Coal Co., BRB No. 91-1567 BLA (Nov. 26, 1993)(unpub.), the Board affirmed the
administrative law judge's findings regarding length of coal mine employment and
that the evidence established the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1), but vacated his findings pursuant to 20 C.F.R.
§§718.203(b), 718.204, and remanded the case for reconsideration.

     On remand, the administrative law judge found the presumption that claimant's
pneumoconiosis arose out of coal mine employment pursuant to Section 718.203(b)
unrebutted, and the existence of a totally disabling respiratory impairment
established pursuant to Section 718.204(c).  The administrative law judge, however,
found the evidence insufficient to establish that claimant's total respiratory
disability was due, at least in part, to pneumoconiosis pursuant to Section
718.204(b).  Accordingly, benefits were denied.

     On appeal, claimant contends that the administrative law judge erred in his
weighing of the medical evidence at Section 718.204(b).  Claimant's Brief at 2-5;
Claimant's Reply Brief at 1-3.  Employer responds, urging affirmance.  The
Director, Office of Workers' Compensation Programs (the Director), responds,
asserting that the administrative law judge mischaracterized the evidence and erred
in his analysis at Section 718.204(b).  Director's Brief at 3-4.  Employer replies
that the Director lacks standing to participate in this appeal.[2]   Employer's Reply Brief at 2.

     The Board's scope of review is defined by statute.  The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with law.  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).

     Employer contends that because the Director's administrative or policy
interests are not implicated by the administrative law judge's decision, the
Director is not adversely affected and therefore lacks standing to raise any issues
regarding the administrative law judge's weighing of the evidence.  Employer's
Reply Brief at 2.

     The Act provides that the Director is a party to any black lung proceeding
before the Board.  30 U.S.C. §932(k); see 20 C.F.R.
§§725.360(a)(5), 802.201(a); Hodges v. BethEnergy Mines, Inc., 18
BLR 1-84 (1994).  The Director has standing not only to represent the government's
interests in cases in which the Director is the respondent and in which the Black
Lung Disability Trust Fund is secondarily liable, Krolick Contracting Corp. v.
Benefits Review Board, 558 F.2d 685, 689 (3d Cir. 1977), but also to ensure the
proper enforcement and lawful administration of the black lung program.  20 C.F.R.
§725.465(d); Pendley v. Director, OWCP, 13 BLR 1-23 (1989)(en banc
order); Capers v. The Youghiogheny and Ohio Coal Co., 6 BLR 1-1234
(1984).  The Board has held that, pursuant to Section 422(k), 30 U.S.C.
§932(k), the Director occupies a unique position in proceedings under the Act,
and application of the general prohibition against the raising of another party's
rights is negated.  Hodges, 18 BLR at 1-88; see Warth v. Seldin, 422
U.S. 490, 499-500 (1975)(generally, litigant must assert his own legal rights and
interests, not those of third parties).  Therefore, we reject employer's contention
that the Director lacks standing to challenge the administrative law judge's
weighing of the evidence.

     Both the Director and claimant argue that the administrative law judge erred
at Section 718.204(b) by mischaracterizing Dr. Mettu's opinion as failing to state
the cause of claimant's impairment, when Dr. Mettu linked claimant's impairment to
his coal mine employment.  Director's Brief at 3; Claimant's Reply Brief at 1.

     At Section 718.204(b), the administrative law judge stated that "Dr. Mettu .
. . did not indicate the etiology" of claimant's impairment.  Decision and Order
at 5.  He then considered the opinions of Drs. Penman, Varney, Broudy, and
Zaldivar, and accorded greater weight to the conclusions of Drs. Broudy and
Zaldivar that claimant's impairment was due to causes other than pneumoconiosis,
based on their superior qualifications.[3]  
Id.

     Dr. Mettu diagnosed chronic bronchitis which he linked to claimant's coal mine
employment, see 20 C.F.R. §718.201, opining that claimant suffered a
moderate impairment of pulmonary function which rendered him totally disabled. 
Director's Exhibit 8.  When asked to provide a rationale for his conclusion that
claimant was totally disabled, Dr. Mettu repeated the diagnosis of chronic
bronchitis and related his objective study findings.  Id.

     Inasmuch as the administrative law judge mischaracterized Dr. Mettu's opinion and his determination to accord greater weight to the opinions of
Drs. Broudy and Zaldivar, based on their superior qualifications, is unsupported
by the record, see Tackett v. Director, OWCP, 7 BLR 1-703 (1985)(en
banc), we vacate his finding at Section 718.204(b) and remand the case for him
to reconsider the relevant evidence.

     Because Drs. Broudy and Zaldivar did not diagnose pneumoconiosis, and this
case arises within the appellate jurisdiction of the United States Court of Appeals
for the Sixth Circuit, see Director's Exhibits 3, 20, we instruct the
administrative law judge on remand to consider the causation opinions of Drs.
Broudy and Zaldivar in light of Adams v. Director, OWCP, 886 F.2d 818, 13
BLR 2-52 (6th Cir. 1989)(administrative law judge permissibly rejected causation
opinion because it was rendered under mistaken belief that claimant had no
pneumoconiosis), and Tussey v. Island Creek Coal Co., 982 F.2d 1036, 17 BLR
2-16 (6th Cir. 1993)(opinion finding no pneumoconiosis deprived of probative value
concerning causation of respiratory impairment).  See Bobick v. Saginaw Mining
Co., 13 BLR 1-52 (1988); Trujillo v. Kaiser Steel Corp., 8 BLR 1-472
(1986).

     Accordingly, the administrative law judge's Decision and Order is affirmed in
part and vacated in part, and the case is remanded for further consideration
consistent with this opinion.

     SO ORDERED.



                                                                  
                                   ROY P. SMITH
                                   Administrative Appeals Judge



                                                                  
                                   JAMES F. BROWN
                                   Administrative Appeals Judge



                                                                  
                                   NANCY S. DOLDER
                                   Administrative Appeals Judge

To Top of Document

Footnotes.
 1) Claimant is Elmer Coleman, the miner, whose claim for benefits
filed on April 6, 1987 was denied on September 21 and December 31, 1987. 
Director's Exhibits 12, 13.  After additional evidence submitted in connection with
claimant's state workers' compensation claim was considered, claimant's federal
claim was again denied on August 29 and December 4, 1989.  Director's Exhibit 15. 
Thereafter, claimant requested a hearing before an administrative law judge. 
Director's Exhibit 39.
 Back to Text

 2) We affirm as unchallenged on appeal the administrative law
judge's findings pursuant to 20 C.F.R. §§718.203(b) and 718.204(c). 
See Coen v. Director, OWCP, 7 BLR 1-30 (1984); Skrack v. Island Creek
Coal Co., 6 BLR 1-710 (1983).
 Back to Text

 3) A review of the record reveals no evidence of Dr. Broudy's or
Dr. Zaldivar's credentials, and the administrative law judge did not take judicial
notice of them.  See Maddaleni v. The Pittsburg & Midway Coal Mining Co.,
14 BLR 1-135 (1990), aff'd sub nom. Maddaleni v. Director, OWCP, 961
F.2d 1524, 16 BLR 2-68 (10th Cir. 1992).
 Back to Text

To Top of Document