BRB No. 02-0760 BLA
JUANITA BROCK )
(Widow of WHITT BROCK) )
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:05/29/2003
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order of John C. Holmes, Administrative Law Judge, United States
Department of Labor.
Juanita Brock, Tazwell, Tennessee, pro se.
Michael J. Rutledge, Jennifer U. Toth (Howard M. Radzely, Acting Solicitor of Labor; Donald S.
Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor; Michael J. Rutledge,
Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for Director, Office
of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER, Administrative
Appeals Judges.
PER CURIAM:
Claimant appeals, without the assistance of counsel,[1] the Decision and Order (99-BLA- 1144) of Administrative Law Judge John C. Holmes denying
benefits on a duplicate miner's 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).[2] When this case was previously before the Board, the Board affirmed the administrative law judge's
denial of the widow's claim because death due to pneumoconiosis was not established, but vacated the denial on
the duplicate, miner's claim and remanded the case for consideration of whether the existence of pneumoconiosis
was established in the miner's claim based on medical opinion evidence and, if reached, whether total disability
was established. Brock v. Director, OWCP, BRB No. 01-0762 BLA (Apr. 23, 2002)(unpub.). The history
of the case is also set forth in that decision. On remand the administrative law judge found that the evidence was
insufficient to establish the existence of pneumoconiosis, total disability or total disability due to pneumoconiosis.
Accordingly, benefits were denied on the miner's claim.
On appeal, claimant generally challenges the findings of the administrative law judge. In response, the
Director, Office of Workers' Compensation Programs (the Director), argues that the administrative law judge's
denial of benefits on the miner's claim must be vacated and the case must be remanded because the administrative
law judge failed to consider all the evidence on the existence of legal pneumoconiosis.
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. Hodges v. Bethenergy Mines,
Inc., 18 BLR 1-85 (1994); McFall v. Jewell Ridge Coal Co., 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 in accordance
with law. 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).
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).
Claimant first contends generally that the administrative law judge should have found the existence of
pneumoconiosis established. The Director asserts that the administrative law judge erred in finding that the
medical opinion evidence was insufficient to establish the existence of "legal" pneumoconiosis. The Director also
points out that the miner's prior claim was denied based on his failure to establish total disability. The Director
now concedes that the autopsy prosector's finding of cor pulmonale establishes total disability at 20 C.F.R.
§718.204(b)(2)(iii), and, thereby, demonstrates a material change in conditions pursuant to 20 C.F.R.
§725.309 (2000). Thus, the Director contends that the administrative law judge was obliged to consider all
the medical opinions of record, not just the opinions of Drs. Hudson and Smith, when adjudicating the miner's
claim on the merits. Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994). Moreover, the
Director contends that the administrative law judge erred in finding that the opinions of Drs. Hudson and Smith
did not establish the existence of legal pneumoconiosis, citing 20 C.F.R. §§718.201(a)(2),
718.202(a)(4).
At the outset, we agree with the Director that the administrative law judge must consider all the evidence
of record in determining whether claimant has established entitlement to benefits on the miner's claim. The
Director has conceded that a material change in conditions is established based on autopsy findings of cor
pulmonale, which would establish total disability, assuming that the miner suffered from legal pneumoconiosis
as found by Administrative Law Judge Samuel J. Smith in the prior claim, see 20 C.F.R.
§718.204(b)(2)(iii), Director's Brief at 10-11. This case must, accordingly, be remanded. See Ross,
supra.
Considering the new opinions of Drs. Hudson and Smith, the administrative law judge stated that he did
not credit Dr. Hudson's finding as equivalent to a finding of pneumoconiosis. Decision and Order at 1
(unpaginated). A review of the evidence, however, shows that Dr. Hudson opined that claimant had chronic
bronchitis caused by coal mine employment which, as the Board indicated in its previous decision, is clearly
sufficient to support a finding of legal pneumoconiosis, if credible. 20 C.F.R. §718.201(a)(2); Director's
Exhibit 10. The administrative law judge erred, therefore, in determining that Dr. Hudson's finding was not
equivalent to a finding of pneumoconiosis under the Act. 20 C.F.R. §718.201(a)(2). Moreover, the
administrative law judge's statement that Dr. Hudson's opinion, even if credited, would be overwhelmingly
contradicted by the negative x-ray evidence is not determinative. With respect to the x-ray evidence, 20 C.F.R.
§718.202(a) provides alternate methods for establishing the existence of pneumoconiosis. See 20
C.F.R. §718.202(a)(1)-(4); Cornett v. Benham Coal, Inc., 227 F.3d 569, 22 BLR 2-107 (6th Cir.
2000). With respect to the physicians' opinions of record, while the administrative law judge indicated that Dr.
Hudson's opinion would be contradicted by the other physicians' opinions, apart from a reference to Dr. Smith's
opinion, the administrative law judge failed to identify or discuss those opinions sufficiently. As Dr. Smith's
opinion was the only opinion considered, in addition to Dr. Hudson's, and Dr. Smith diagnosed "possible
pneumoconiosis," the administrative law judge's finding that claimant failed to establish the existence of
pneumoconiosis doesn't encompass all of the opinions of record. Director's Exhibit 19. The administrative law
judge's finding at Section 718.202(a)(4) is, therefore, vacated and the case is remanded for consideration of all
the medical opinion evidence at that section. If the administrative law judge determines, on remand, that claimant
has established the existence of pneumoconiosis, he must then consider whether claimant has established the other
elements of entitlement in the miner's claim. 20 C.F.R. §§718.203, 718.204; see Ross,
supra.[3]
Accordingly, the Decision and Order of the administrative law judge denying benefits is vacated and the
case is remanded to the administrative law judge for further consideration consistent with this opinion.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1) Ron Carson, a benefits counsel with Stone Mountain Health Services of St.
Charles, Virginia, requested, on behalf of claimant, that the Board review the administrative law judge's
decision, but Mr. Carson is not representing claimant on appeal. See Shelton v. Charles V. Keen
Trucking Co., 19 BLR 1-88 (1995)(Order).
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2) 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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3) The administrative law judge noted that even if he were to find total disability established
based on the autopsy evidence of cor pulmonale, no benefits would be awarded on the miner's claim since cor
pulmonale was not diagnosed until the time of the miner's death. Decision and Order at 2 (unpaginated). We
agree with the Director, however, that benefits could ensue on the miner's claim inasmuch as the evidence of cor
pulmonale would show, not that the miner became totally disabled on the date of the evidence showing cor
pulmonale, but that he became totally disabled at some time prior to that date. See Green v. Director,
OWCP, 790 F.2d 1118, 1119 n.4, 9 BLR 2-32, 2-36 n.4 (4th Cir. 1986); Shupink v. LTV Steel Co.,
17 BLR 1-24, 1-30 (1992). Further, if the administrative law judge finds that the onset date cannot be determined
based on the evidence, the miner would be entitled to benefits starting on the first day of the month in which he
filed his claim. 20 C.F.R. §725.503(b); see Director's Brief at 17 n.9. Remand of this case is,
therefore, necessary.
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NOTE: This is an UNPUBLISHED BLA Document.
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