BRB No. 00-0823 BLA
CHARLES G. HARTLEY )
)
Claimant-Petitioner )
)
v. )
)
C.J. LANGENFELDER & SON, )
INCORPORATED )
)
and ) DATE ISSUED:05/15/2001
)
WEST VIRGINIA COAL WORKERS' )
PNEUMOCONIOSIS FUND )
)
Employer/Carrier- )
Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Daniel L. Leland,
Administrative Law Judge, United States Department of Labor.
Charles G. Hartley, Windham, Ohio, pro se.
Robert Weinberger (West Virginia Coal Workers' Pneumoconiosis Fund),
Charleston, West Virginia, for employer.
Rita Roppolo (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:
Claimant, without the assistance of counsel, appeals the Decision and Order
(99-BLA-1353) of Administrative Law Judge Daniel L. Leland 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).[1] The administrative law judge noted that the
instant claim was a modification request and applied the proper standard. Decision
and Order at 2-4. Considering entitlement pursuant to the provisions of 20 C.F.R.
Part 718 (2000),[2] the administrative law judge
found four and one-quarter years of qualifying coal mine employment and concluded
that the evidence of record was insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a) (2000) and thus neither a
mistake in fact nor a change in conditions was established pursuant to 20 C.F.R.
§725.310 (1999).[3] Decision and Order at
3-6. Accordingly, benefits were denied. On appeal, claimant generally contends
that the administrative law judge erred in denying benefits. Employer responds
urging affirmance of the denial of benefits. The Director, Office of Workers'
Compensation Programs (the Director), has filed a letter indicating that he will
not respond in 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 9, 2001, to which employer
and the Director have responded.[4] Claimant has
not responded to the 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.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue raised to be whether the Decision and Order below is supported
by substantial evidence. McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176
(1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must affirm the
administrative law judge's Decision and Order if the findings of fact and
conclusions of law are rational, supported by substantial evidence, and are 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).
In order to establish entitlement to benefits in a living miner's claim filed
pursuant to 20 C.F.R. Part 718, claimant must establish the existence of
pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that
the pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202,
718.203, 718.204 (2000); Gee v. W.G. Moore and Sons, 9 BLR 1-4 (1986)(en
banc). 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).
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
administrative law judge's Decision and Order is supported by substantial evidence
and contains no reversible error therein.[6] The
United States Court of Appeals for the Fourth Circuit issued Jessee v.
Director, OWCP, 5 F.3d 723, 18 BLR 2-26 (4th Cir. 1993), holding that the
administrative law judge must determine whether a change in conditions or a mistake
of fact has been made even where no specific allegation of either has been made by
claimant.[7] Furthermore, in determining whether
claimant has established modification pursuant to Section 725.310 (1999), 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. Nataloni v. Director, OWCP, 17 BLR 1-82 (1993); Kovac v. BCNR
Mining Corp., 14 BLR 1-156 (1990), modified on recon., 16 BLR 1-71
(1992); Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989); O'Keeffe
v. Aerojet-General Shipyards, Inc., 404 U.S. 254 (1971). The administrative
law judge, in the instant case, rationally determined that the evidence of record
was insufficient to establish the existence of pneumoconiosis pursuant to Section
718.202(a) (2000) and therefore insufficient to establish modification. Piccin
v. Director, OWCP, 6 BLR 1-616 (1983). The administrative law judge reviewed
the relevant evidence of record in the original decision in determining if a
mistake in determination of fact was established and properly concluded that the
finding of no pneumoconiosis by Administrative Law Judge Morin was correct.
Decision and Order at 5; Jessee, supra; Piccin, supra.
Considering the newly submitted evidence to determine if a change in
conditions was established, the administrative law judge permissibly found that the
evidence was insufficient to establish the existence of pneumoconiosis pursuant to
Section 718.202(a) (2000). Piccin, supra. The administrative law
judge rationally found that the evidence of record was insufficient to establish
the existence of pneumoconiosis at Section 718.202(a)(1) (2000) as all of the newly
submitted x-ray readings were negative. Director's Exhibits 50, 56-63; Decision
and Order at 3-5; Adkins v. Director, OWCP, 958 F.2d 49, 16 BLR 2-61 (4th
Cir. 1992); Edmiston v. F & R Coal Co., 14 BLR 1-65 (1990); Clark v.
Karst-Robbins Coal Co., 12 BLR 1-149 (1988)(en banc).
Further, we affirm the administrative law judge's finding that the newly
submitted evidence is insufficient to establish the existence of pneumoconiosis at
20 C.F.R. §718.202(a)(2) (2000) since the record does not contain any biopsy
results demonstrating the presence of pneumoconiosis. Decision and Order at 6;
Kuchwara v. Director, OWCP, 7 BLR 1-167 (1984); Piccin, supra.
Additionally, the newly submitted evidence is insufficient to establish the
existence of pneumoconiosis at 20 C.F.R. §718.202(a)(3) (2000) since none of
the presumptions set forth therein are applicable to the instant claim.[8] See 20 C.F.R. §§718.304,
718.305, 718.306 (2000); Langerud v. Director, OWCP, 9 BLR 1-101 (1986).
In weighing the newly submitted medical opinions of record, the
administrative law judge also rationally concluded that this evidence was
insufficient to establish the existence of pneumoconiosis as the physicians who are
supportive of claimant's burden, Drs. Bermudez and Agnone, based their opinions on
inaccurate smoking and length of coal mine employment histories.[9] Decision and Order at 6; Director's Exhibits 50,
51, 55, 65, 66; Worhach v. Director, OWCP, 17 BLR 1-105 (1993); Bobick
v. Saginaw Mining Co., 13 BLR 1-52 (1988); Anderson v. Valley Camp of
Utah, Inc., 12 BLR 1-111 (1989); Dillon v. Peabody Coal Co., 11 BLR 1-113 (1988); Stark v. Director, OWCP, 9 BLR 1-136 (1986); Hutchens v.
Director, OWCP, 8 BLR 1-16 (1985); Maypray v. Island Creek Coal
Co., 7 BLR 1-683 (1985). Thus, we affirm the administrative law judge's
finding that the newly submitted evidence is insufficient to establish the
existence of pneumoconiosis at Section 718.202(a)(4) (2000). Perry, supra.
The administrative law judge is empowered to weigh the medical opinion evidence of
record and to draw his own inferences therefrom, see Maypray, supra, and the
Board may not reweigh the evidence or substitute its own inferences on appeal.
See Clark, supra; Anderson, supra; Worley v. Blue Diamond Coal
Co., 12 BLR 1-20 (1988). Consequently, we affirm the administrative law judge's
finding that the newly submitted evidence of record is insufficient to establish
the existence of pneumoconiosis pursuant to Section 718.202(a) (2000) as it is
supported by substantial evidence and is in accordance with law.[10] Jessee, supra; Clark, supra;
Perry, supra.
Accordingly, the administrative law judge's Decision and Order denying
modification and benefits 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)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 65 Fed. Reg. 80,045-80,107
(2000) (to be codified at 20 C.F.R. Parts 718, 722, 725 and 726). All citations to
the regulations, unless otherwise noted, refer to the amended regulations.
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2) Claimant filed his initial claim for benefits on February 25, 1991, which was denied on April 10, 1991.
Director's Exhibit 43. Claimant took no further action on that claim. Claimant filed the present claim on March
31, 1995, which was denied on October 23, 1995 and claimant filed a subsequent claim on August 23, 1996 which
was treated as a modification request as it was filed within one year of the prior denial. Director's Exhibits 1, 26,
31, 34. The modification request was finally denied by Administrative Law Judge George P. Morin on May 19,
1998, as claimant failed to establish the existence of pneumoconiosis. Director's Exhibit 47. Claimant filed the
instant modification request on February 15, 1999. Director's Exhibit 52.
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3)The amendments to the regulation at 20 C.F.R.§725.310 do not apply to claims,
such as this, which were pending on January 19, 2001; rather, the version of this regulation as published in the
1999 Code of Federal Regulations is applicable. See 65 Fed. Reg. 80, 057 (2000)(to be codified at 20
C.F.R.§725.2(c)).
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4)The Director's brief, dated March 28, 2001, asserted that the regulations at issue in the
lawsuit do not affect the outcome of this case. In a brief dated March 28, 2001, employer asserted that it generally
believes that the Board's interpretation of these regulations will determine whether they affect the outcome of this
case. Employer's Brief at 1. Employer contends that the provisions contained at 20 C.F.R.
§§718.201(a)(2), (c) and 718.104(d) may affect the disposition of this case, but has not specifically
indicated how the application of the new regulations to the facts of the case herein could affect the outcome of the
instant appeal.
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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 9, 2001, would be construed as a position that the
challenged regulations will not affect the outcome of this case.
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6)We note that the administrative law judge acted within his discretion in crediting the
miner with four and one-quarter years of coal mine employment based on the Social Security and employment
records. See Vickery v. Director, OWCP, 8 BLR 1-430 (1986); Niccoli v. Director, OWCP, 6
BLR 1-910 (1984); Decision and Order at 3. We, therefore, affirm the administrative law judge's length of coal
mine employment determination as it is rational and based on a reasonable method of calculation. Vickery,
supra.
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7)This case arises within the jurisdiction of the United States Court of Appeals for the
Fourth Circuit as the miner was employed in the coal mine industry in the State of West Virginia. See Shupe
v. Director, OWCP, 12 BLR 1-200 (1989)(en banc); Director's Exhibits 2, 3.
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8)The presumption at 20 C.F.R. §718.304 (2000) is inapplicable because there is no
evidence of complicated pneumoconiosis in the record. Claimant is not entitled to the presumption at 20 C.F.R.
§718.305 (2000) because he filed his claim after January 1, 1982. See 20 C.F.R. §718.305(e)
(2000); Director's Exhibit 1. Lastly, this claim is not a survivor's claim; therefore, the presumption at 20 C.F.R.
§718.306 (2000) is also inapplicable.
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9)Drs. Bermudez and Agnone both relied upon a coal mine employment history of fifteen
years and a smoking history of one-half pack of cigarettes for twenty years. Director's Exhibits 65, 66.
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10)Remand to the administrative law judge for reconsideration of the newly submitted
evidence under 20 C.F.R. §718.202(a)(1)-(4) in accordance with the Fourth Circuit's recent decision in
Island Creek Coal Co. v. Compton, 211 F.3d 203, BLR 2- (4th Cir. 2000), is not necessary, as the
administrative law judge properly determined that the existence of pneumoconiosis was not established under any
of the relevant subsections.
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NOTE: This is an UNPUBLISHED BLA Document.
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