BRB No. 95-2163 BLA








DATE ISSUED:         

     Appeal of the Decision and Order of Frederick D. Neusner, Administrative
     Law Judge, United States Department of Labor.

     James P. Pruitt, Jr. (Pruitt & de Bourbon), Pikeville, Kentucky, for

     Natalie D. Brown (Jackson & Kelly), Lexington, Kentucky, for employer.

     Before:  HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY,
     Administrative Appeals Judges.


     Claimant[1]  appeals the Decision and Order
(94-BLA-1450) of Administrative Law Judge Frederick D. Neusner 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).  The administrative law judge accepted the parties' stipulation to thirty-two
years of coal mine employment, found that the miner had one dependent for purposes of benefits augmentation, and
determined that employer was the responsible operator.  The administrative law
judge found that the evidence failed to establish the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a) and, accordingly, denied benefits.

     On appeal, claimant contends that the evidence establishes that the miner was
totally disabled due to pneumoconiosis arising out of coal mine employment. 
Employer responds, urging affirmance.  The Director, Office of Workers'
Compensation Programs (the Director), has declined to participate in this appeal.[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).

     The Board is not authorized to undertake a de novo adjudication of the
claim.  To do so would upset the carefully allocated division of authority between
the administrative law judge as trier-of-fact, and the Board as a reviewing
tribunal. See 20 C.F.R. §802.301(a); Sarf v. Director, OWCP, 10
BLR 1-119 (1987); Cox v. Benefits Review Board, 791 F. 2d 445, 9 BLR 2-46
(6th Cir. 1986); Fish v. Director, OWCP, 6 BLR 1-107 (1983).  As we have
emphasized previously, the Board's circumscribed scope of review requires that a
party challenging the Decision and Order below address that Decision and Order with
specificity and demonstrate that substantial evidence does not support the result
reached or that the Decision and Order is contrary to law. See 20 C.F.R.
§802.211(b); Cox, supra; Slinker v. Peabody Coal Co., 6
BLR 1-465 (1983); Fish, supra; Sarf, supra.  A petitioner who fails to
comply with the requisite regulations provides the Board with no basis to reach the
merits of an appeal. See Cox, supra.  In the instant case, claimant
generally asserts that the opinions of Drs. Wright and Anderson establish
entitlement to benefits.  Claimant's Brief at 3-5.  Claimant, however, fails to
identify any error made by the administrative law judge in his evaluation of the
evidence[3]  or in his application of law pursuant to 20 C.F.R. Part 718.  Thus, as claimant's counsel
has failed to adequately raise or brief any issues arising from the administrative
law judge's Decision and Order denying benefits, the Board has no basis upon which
to review the decision.  Thus, we decline to review the Decision and Order of the
administrative law judge and affirm the administrative law judge's denial of
benefits. See Sarf, supra; Cox, supra.

     Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.


                                   BETTY JEAN HALL, Chief
                                   Administrative Appeals Judge

                                   JAMES F. BROWN
                                   Administrative Appeals Judge

                                   REGINA C. McGRANERY
                                   Administrative Appeals Judge


1) Oliver D. Thompson, the miner, filed his initial application for benefits on August 18, 1986 which was still pending when he filed the present application on October 20, 1993. Director's Exhibits 1, 33 at 1, 15-18. Accordingly, the administrative law judge determined that the claims merged pursuant to 20 C.F.R. §725.309(d). Decision and Order at 1-2. The miner died on January 13, 1996 and his personal representative now pursues the claim on behalf of his estate. Response to Show Cause Order, April 12, 1996. Back to Text
2) We affirm as unchallenged on appeal and supported by substantial evidence the administrative law judge's findings regarding length of coal mine employment, dependency, responsible operator status, and pursuant to 20 C.F.R. §725.309(d). 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) Pursuant to Section 718.202(a)(4), the administrative law judge permissibly accorded diminished weight to the 1987 reports of Drs. Wright and Anderson diagnosing pneumoconiosis because they were contradicted by their later opinions. Decision and Order at 7; Director's Exhibits 9, 10; Employer's Exhibits 13, 14; see Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc). The administrative law judge also rationally found that the weight of the medical opinion evidence viewed in light of the physicians' qualifications was negative for pneumoconiosis. Decision and Order at 7. Back to Text

NOTE: This is an UNPUBLISHED BLA Document.