BRB No. 02-0379 BLA
CHARLES LAUDENSLAGER )
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:02/10/2003
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Denying Request for Modification and
Denying Benefits of Paul H. Teitler, Administrative Law Judge, United
States Department of Labor.
Helen M. Koschoff, Wilburton, Pennsylvania, for claimant.
Jennifer U. Toth (Howard M. Radzely, 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: DOLDER, Chief Administrative Appeals Judge, McGRANERY, and
GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order - Denying Request for Modification and
Denying Benefits (01-BLA-0300) of Administrative Law Judge Paul H. Teitler rendered
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).[1] This case has been before the Board
previously.[2] In a Decision and Order issued on
February 11, 2002, the administrative law judge found that the new evidence
submitted in support of claimant's request for modification of the prior denial was
insufficient to establish that claimant's disability was due to pneumoconiosis.
The administrative law judge found, therefore, that claimant failed to establish
a change in conditions and denied claimant's request for modification.
Accordingly, benefits were again denied.
On appeal, claimant contends that the administrative law judge committed
several errors: that he failed to consider specifically whether a mistake in a
determination of fact had been made in the prior decision denying benefits; that
he failed to weigh the evidence adequately and that he failed to provide sufficient
reasons to support his finding that claimant did not establish disability
causation. In response, the Director, Office of Workers' Compensation Programs,
urges that the administrative law judge's decision denying benefits and denying
claimant's request for modification be affirmed.
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 into the Act 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 prove 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 one 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). In determining whether
claimant's petition for modification should be granted, the administrative law
judge must determine whether the claim has been erroneously denied. See Keating
v. Director, OWCP, 71 F.3d 1118, 1123, 20 BLR 2-53, 2-62 (3d Cir. 1995);
Worrell v. Consolidation Coal Co., 27 F.3d 227, 18 BLR 2-290 (6th Cir.
1994); Jessee v. Director, OWCP, 5 F.3d 723, BLR 2-26 (4th Cir. 1993).
Claimant first asserts that the administrative law judge erred in failing to
specifically review all of the evidence of record to determine if a mistake in fact
had been made. We disagree. The administrative law judge stated that he was
incorporating into his decision the statement and analysis of the evidence set
forth by Administrative Law Judge Robert D. Kaplan in his prior decisions.
Further, the administrative law judge found that in their recently submitted
reports, both Drs. Kraynak and Similaro reviewed the medical evidence of record,
developed over the long history of this case, and that neither doctor had provided
any basis for finding that a mistake in a determination of fact had been made by
Judge Kaplan in his decision. Decision and Order at 5-6; Claimant's Exhibits 1,
3, 4. Accordingly, we reject claimant's assertion that the administrative law
judge failed to consider earlier evidence and failed to determine whether a mistake
in a determination of fact had been made by Judge Kaplan in his prior decision
denying benefits.
Claimant next contends that the administrative law judge erred in his
consideration of the evidence on disability causation. Specifically, claimant
contends that the well-reasoned opinion of Dr. Kraynak, claimant's treating
physician, which was supported by the opinions of Drs. Similaro and Prince, highly
qualified pulmonologists, supports a finding of disability causation, and that the
administrative law judge erred in not finding disability causation established
based on these unrebutted opinions.[3] Claimant
further contends that the administrative law judge's decision fails to comply with
the requirements of the Administrative Procedure Act which requires that the
administrative law judge fully explain the reasons or basis for his findings and
conclusions. 5 U.S.C. §557(c)(3)(A), incorporated into the Act by 5 U.S.C.
§554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C. §932(a).
In concluding that the new evidence did not support claimant's request for
modification, the administrative law judge found that Dr. Kraynak's letter of
September 23, 2000 merely restated his earlier opinion, and provided no additional
evidence regarding claimant's medical condition. Although Dr. Kraynak was
claimant's treating physician, the administrative law judge found Dr. Kraynak's
opinion neither well-reasoned nor well-supported because he had no records of
claimant's prior hospitalizations for stroke or cardiac problems; he did not know
who was claimant's treating physician for these conditions; he relied on an
unreliable pulmonary function study; and he did not provide a basis for his
conclusory statements that claimant was totally disabled by pneumoconiosis.
Further, although acknowledging that Dr. Kraynak was claimant's treating physician,
the administrative law judge found that his opinion was not entitled to greater
weight based on his status as a treating physician because the doctor did not
provide information to establish that he had a close relationship with claimant nor
did he support his opinion with new clinical findings or objective laboratory
testing although he did refer to ongoing treatment and examinations he conducted
in "claimant's car."[4]
Concerning Dr. Similaro's opinion, the administrative law judge found his
cursory and general statement that claimant's prior stroke had not led to any
decrease in pulmonary function to be inadequate to establish that claimant's
pneumoconiosis was a cause or substantially contributing cause of claimant's
pulmonary disability because the administrative law judge found that the evidence
showed that claimant's stroke had, in fact, caused extensive limitations, including
paralysis, inability to speak, and difficulty swallowing. Further, contrary to
claimant's contention, the lack of medical opinion evidence proffered by the
Director to rebut claimant's evidence does not render claimant's evidence immune
from criticism. See Blackledge v. Director, OWCP, 6 BLR 1-1060 (1984);
see generally Director, OWCP v. Greenwich Collieries [Ondecko], 512 U.S.
267, 18 BLR 2A-1 (1994), aff'g sub nom. Greenwich Collieries v. Director,
OWCP, 990 F.2d 730, 17 BLR 2-64 (3d Cir. 1993).
In this case, therefore, the administrative law judge properly determined that
neither the opinion of Dr. Kraynak, nor that of Dr. Similaro was sufficiently
explained and documented to support a finding of causation. See Lango v.
Director, OWCP, 104 F.3d 573, 21 BLR 2-12 (3d Cir. 1997); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc). Claimant essentially
seeks a reweighing of the evidence, which is beyond our scope of review. See
O'Keeffe, supra; Anderson v. Valley Camp of Utah, Inc., 12 BLR
1-111, 1-113 (1989). Accordingly, the administrative law judge's finding on
disability causation is supported by substantial evidence and is, therefore,
affirmed. Consequently, we affirm the administrative law judge's denial of
claimant's request for modification as it is supported by substantial evidence.
Accordingly, the administrative law judge's Decision and Order - Denying
Request for Modification and Denying Benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
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, 725 and 726 (2002). All citations to the regulations, unless otherwise noted, refer to the amended
regulations.
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2) Claimant filed a claim for benefits on September 27, 1993. Director's Exhibit 145. It was
denied by the Administrative Law Judge Robert D. Kaplan on July 24, 1995, because
claimant failed to establish total disability. Director's Exhibit 47. The Board affirmed the denial of benefits on May 30,
1996. Director's Exhibit 58. Claimant subsequently submitted additional evidence and requested modification. Benefits
were denied again by Judge Kaplan on April 16, 1998, because, while claimant established total disability, he failed to
establish total disability due to pneumoconiosis; i.e., disability
causation. Director's Exhibit 86. In a Decision and Order issued September 29, 1999, the Board affirmed the denial of
benefits. See Laudenslager v. Director, OWCP, BRB No. 98-1100 (September 29, 1999)(unpub.). Director's
Exhibit 93.
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3) Claimant withdrew Dr. Prince's opinion from the record in light of employer's objection to the
admission of that opinion. Hearing Transcript at 5-6.
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4) Although Dr. Kraynak stated that he examined claimant every three months and had treated
claimant for ten years, he also stated that these examinations, conducted in claimant's car due to claimant's inability to walk
after his stroke, did not involve any laboratory testing, but were conducted merely to give him the opportunity to listen to
claimant's heart and lungs and review claimant's medication. See Kraynak Dep. at 12, 13, 15, 20, 21.
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NOTE: This is an UNPUBLISHED BLA Document.
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