Jarvis v. Carbon Fuel Co.
| Decision Date | 19 November 2001 |
| Docket Number | BRB 01-0171 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BUDE JARVIS Claimant-Petitioner v. CARBON FUEL COMPANY Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Daniel L. Leland, Administrative Law Judge, United States Department of Labor.
Timothy F. Cogan (Cassidy, Myers, Cogan, Voegelin & Tennant, L.C.), Wheeling, West Virginia, for claimant.
Mary Rich Maloy (Jackson & Kelly PLLC), Charleston, West Virginia, for employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order (00-BLA-0455) 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 instant case involves a duplicate claim filed on July 22, 1996.[2] In the initial decision, Administrative Law Judge Clement J. Kennington found that the only issue before him was whether the evidence was sufficient to establish the existence of complicated pneumoconiosis. Judge Kennington found that the evidence was insufficient to establish the existence of complicated pneumoconiosis. Accordingly, Judge Kennington denied benefits.
Claimant filed an appeal with the Board. While his appeal was pending, claimant filed a request for modification with the district director. By Order dated August 25, 1999, the Board dismissed claimant's appeal and remanded the case to the district director for modification proceedings.[3] Jarvis v. Carbon Fuel Co., BRB No. 98-1585 BLA (Aug. 25, 1999) (Order) (unpublished).
In a Decision and Order dated September 28, 2000, Administrative Law Judge Daniel L. Leland (the administrative law judge) found that the evidence was insufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). Accordingly, the administrative law judge denied benefits. On appeal, claimant contends that the administrative law judge erred in finding the evidence insufficient to establish complicated pneumoconiosis. Claimant also argues that the administrative law judge did not "discharge his duty regarding a claimant unrepresented by a lawyer." Claimant also reserves the right to assert other errors "upon receipt of the entire record." Employer has filed an untimely response brief.[4] The Director, Office of Workers' Compensation Programs, has not filed a response brief.
The Board must affirm the findings of the administrative law judge if they are supported by substantial evidence, are rational, and are in accordance with applicable 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).
Claimant argues that the administrative law judge did not "discharge his duty regarding a claimant unrepresented by a lawyer." Claimant's Brief at 33. At the April 22, 1998 hearing before Judge Kennington, claimant was represented by Melody Moss, a lay representative. See Director's Exhibit 52. Ms. Moss also represented claimant at the July 26, 2000 hearing before the administrative law judge. Claimant indicated that he was aware that Ms. Moss was not an attorney and approved of her representation. Hearing Transcript at 5. The administrative law judge provided claimant with an opportunity to submit and object to the admission of evidence. The administrative law judge provided claimant with sixty days following the hearing in which to submit additional x-ray evidence. Claimant was also provided an opportunity to question witnesses at the hearing. We, therefore, hold that claimant was provided a fair hearing in regard to his modification request.
Claimant also reserves the right to assert other errors "upon receipt of the entire record." Claimant's Brief at 40. By letter dated November 2, 2000, claimant's counsel requested a sixty day extension in which to "review the record" and decide whether he would represent claimant. By letter dated November 21, 2000, claimant's counsel requested copies of some pulmonary function tests that he found unreadable. By letter dated November 28, 2000, claimant's counsel requested a revised briefing schedule.
By Order dated January 29, 2001, the Board directed claimant to file his Petition and Review and brief within thirty days of receipt of the Order. The Board further stated that:
[C]laimant's counsel has requested a copy of the official record. Counsel is advised that this is a voluminous case record and that there, is a charge for photocopying the documents requested. Please inform the Board if you still want a copy of the record.
Despite the Board's offer to provide claimant's counsel with a copy of the record, claimant has never requested a complete copy of the record.[5] We hold that claimant was provided with an adequate opportunity to obtain a complete copy of the record in the instant case.
We now turn our attention to the merits of the instant case. In his adjudication of claimant's 1996 claim, the administrative law judge considered whether the evidence was sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). Before making such a finding, the administrative law judge should have addressed whether the evidence was sufficient to establish modification pursuant to 20 C.F.R. §725.310.[6] See 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). However, to the extent that we affirm the administrative law judge's finding pursuant to 20 C.F.R. §725.309 (2000), the administrative law judge's failure to make an initial finding pursuant to 20 C.F.R. §725.310 constitutes harmless error. See Larioni v. Director, OWCP, 6 BLR 1-1284 (1986).
Section 725.309 (2000) provides that a duplicate claim is subject to automatic denial on the basis of the prior denial, unless there is a determination of a material change in conditions since the denial of the prior claim. 20 C.F.R. §725.309(d) (2000). The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, has held that in assessing whether a material change in conditions has been established, an administrative law judge must consider all of the new evidence, favorable and unfavorable, and determine whether the miner has proven at least one of the elements of entitlement previously adjudicated against him. Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1995), cert. denied, 117 S.Ct. 763 (1997). Claimant's 1979 claim was denied because claimant failed to establish that he was totally disabled. Director's Exhibit 40. Consequently, in order to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000), the newly submitted evidence must support a finding of total disability.
In his consideration of whether the newly submitted evidence was sufficient to establish total disability, the administrative law judge initially found that the newly submitted evidence was insufficient to establish total disability pursuant to 20 C.F.R. §718.204(c) (2000).[7] Decision and Order at 5. All of the newly submitted pulmonary function and arterial blood gas studies are non-qualifying. Director's Exhibits 16, 18, 46. There is no newly submitted medical opinion evidence that supports a finding that claimant suffers from a totally disabling respiratory or pulmonary impairment[8]and there is no evidence of cor pulmonale with right sided congestive heart failure. Inasmuch as it is based upon substantial evidence, we affirm the administrative law judge's finding that the newly submitted evidence is insufficient to establish total disability pursuant to 20 C.F.R. §718.204(c) (2000) and, therefore, insufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000).
The record, however, contains newly submitted evidence supportive of a finding of complicated pneumoconiosis. This evidence, if credited, could establish entitlement to the irrebuttable presumption set out at 20 C.F.R. §718.304[9]and, therefore, could establish a finding of a material change in conditions pursuant to 20 C.F.R. §725.309 (2000).
The administrative law judge found that the newly submitted evidence is insufficient to establish the existence of complicated pneumoconiosis.[10] Decision and Order at 5-6. Claimant contends that the administrative law judge erred in finding the x-ray evidence insufficient to establish the existence of complicated pneumoconiosis.
In his consideration of whether the newly submitted evidence was sufficient to establish complicated pneumoconiosis, the administrative law judge noted that while Dr. Francke, a B reader and Board-certified radiologist, interpreted claimant's August 21, 1996 x-ray as revealing size A large opacities, Director's Exhibit 9, five equally qualified physicians, Drs. Wheeler, Scott, Wiot, Shipley and Spitz, interpreted this x-ray as negative for complicated pneumoconiosis.[11] Director's Exhibits 45, 47, 49. The administrative law judge, therefore, properly found that the preponderance of the interpretations of claimant's August 21, 1996 x-ray is negative for complicated pneumoconiosis. Decision and Order at 5-6.
The administrative law judge also noted that while Dr. Aycoth, a B reader, interpreted claimant's May 21, 1997 x-ray as revealing size A large opacities, Director's Exhibit 42 Drs. Scott, Wheeler, Wiot, Shipley, Spitz, Meyer and Pendergrass, all dually qualified as B readers and Board-certified...
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