Jones v. Freeman United Coal Mining Co.
| Decision Date | 15 March 2011 |
| Docket Number | BRB 10-0366 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | MARSHA L. JONES Widow of GEORGE JONES Claimant-Petitioner v. FREEMAN UNITED COAL MINING 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UNPUBLISHED OPINION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 Denying Benefits of Jeffrey Tureck Administrative Law Judge, United States Department of Labor.
Marsha L. Jones, Sesser, Illinois, pro se.
John A. Washburn (Gould & Ratner LLP), Chicago, Illinois, for employer.
Helen H. Cox (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, Associate Solicitor; 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, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Claimant [1]without the assistance of counsel, appeals the Decision and Order Denying Benefits (2008-BLA-05711) of Administrative Law Judge Jeffrey Tureck (the administrative law judge) rendered on a survivor's claim filed pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§910-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) ()(the Act). [2] The administrative law judge adjudicated the claim pursuant to 20 C.F.R. Part 718, based on the filing date of March 1, 2004. [3] Director's Exhibit 2. The administrative law judge found that claimant established that a mistake in a determination of fact was made in the previous denial of the claim, because the evidence established the existence of simple pneumoconiosis. See 20 C.F.R. §718.202(a)(2) and (4). The administrative law judge, therefore, found that claimant met her initial burden on modification pursuant to 20 C.F.R. §725.310(a). Turning to the merits of the claim, however, the administrative law judge found that the evidence failed to establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Accordingly, the administrative law judge denied benefits.
On appeal, claimant generally contests the denial of benefits, challenging the administrative law judge's evaluation of the medical evidence, and asserting that she was denied due process. Further, claimant specifically contends that the administrative law judge ignored pathology slides, that the doctors' depositions were a “sham, ” and that she was not present at the depositions. Employer responds, urging affirmance of the administrative law judge's denial of benefits. The Director, Office of Workers' Compensation Programs, has not filed a response brief on the merits of this appeal. [4]
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). The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence and in accordance with applicable law. [5] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
To establish entitlement to survivor's benefits pursuant to 20 C.F.R. Part 718, claimant must demonstrate by a preponderance of the evidence that the miner had pneumoconiosis arising out of coal mine employment and that his death was due to pneumoconiosis. Because the instant survivor's claim was filed after January 1, 1982, claimant must establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). [6] See 20 C.F.R. §§718.1, 718.202, 718.203, 718.205(c); Neeley v. Director, OWCP, 11 BLR 1-85 (1988). A miner's death will be considered to be due to pneumoconiosis if the evidence is sufficient to establish that pneumoconiosis was a substantially contributing cause or factor leading to the miner's death. 20 C.F.R. §718.205(c)(2). Pneumoconiosis is a “substantially contributing cause” of a miner's death if it hastens the miner's death. 20 C.F.R. §718.205(c)(5); see Peabody Coal Co. v. Director, OWCP [Railey], 972 F.2d 178, 16 BLR 2-121 (7th Cir. 1992). [7]
Modification may be based upon a finding of a mistake in a determination of fact pursuant to 20 C.F.R. §725.310. In reviewing the record as a whole on modification, an administrative law judge is authorized “to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted.” O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971); see also Old Ben Coal Co. v. Director, OWCP [Hilliard], 292 F.3d 533, 22 BLR 2-429 (7th Cir. 2002).
In this case, the administrative law judge found that pneumoconiosis was established by the opinions of Drs. Askin and Repsher, diagnosing coal workers' pneumoconiosis, which were based on Dr. Askin's pathology report. The administrative law judge, therefore, determined that a mistake in a determination of fact was made in the prior decision when Administrative Law Judge William S. Colwell found that the miner did not have pneumoconiosis. 20 C.F.R. §725.301(a); Decision and Order at 3; Director's Exhibit 45; Employer's Exhibits 1, 2, 20. Because the administrative law judge's finding on modification is not contested by employer, and is in claimant's favor, it is affirmed. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983).
Next, because claimant is representing herself on appeal, we will address her specific arguments, and also determine whether substantial evidence supports the administrative law judge's finding that the evidence failed to establish that the miner's death was due to pneumoconiosis. Specifically, claimant asserts that the administrative law judge erred in relying on the opinions of Drs. Askin and Repsher because they did not consider all of the relevant evidence.
At the formal hearing on March 26, 2009, the administrative law judge admitted all of claimant's evidence, except for documents that were already of record, or documents that he found were not items of evidence, such as the Employer's Pre-Hearing report. [8] Hearing Transcript at 17-18, 20, 33. The record was held open for the submission of additional evidence and briefs. Id. at 31, 33; see Order Closing Record [as of June 19, 2009], 2008-BLA-05711 (May 26, 2009)(unpub. Order). Thereafter, the administrative law judge accepted the March 30, 2009 report and the May 5, 2009 deposition of Dr. Parks, and the June 9, 2009 report of Dr. Repsher, offered in rebuttal of Dr. Parks's opinion. Decision and Order at 1-2; Claimant's Exhibit 2; Employer's Exhibits 19, 20. The administrative law judge overruled claimant's objection to Dr. Repsher's June 9, 2009 report because he determined that claimant's objections “go to its probative value rather than its admissibility.” Decision and Order at 2; Claimant's Letter of June 16, 2009. Further, based on the administrative law judge's review of the evidence attached to claimant's cover letters of March 31, 2009, May 26, 2009, and June 16, 2009, the administrative law judge admitted Dr. Sanjabi's letter of May 19, 2009, [9]but found that the remainder of the attached items were “either … duplicates of exhibits already admitted into evidence or … irrelevant.” Decision and Order at 2; Claimant's Exhibit 3.
Based on the foregoing, we conclude that the record does not support claimant's procedural or due process contentions. The record reflects that the autopsy evidence, including Dr. Askin's autopsy review, was admitted into the hearing record at the May 2, 2006 and the March 26, 2009 administrative hearings. [10] Director's Exhibit 43 at 8-9; Hearing Transcript at 17; see Employer's Exhibits 6 at 3 and 4, 17. Moreover, the fact that some of the autopsy slides were submitted to the Armed Forces Institute of Pathology (AFIP) in support of the miner's Agent Orange/asbestosis claims, or that they may have been differently evaluated by physicians in those claims does not demonstrate that the autopsy materials considered in the instant case were either fraudulent or improperly admitted. Therefore, claimant's allegation that Dr. Askin considered evidence that was not of record in the miner's AFIP case is irrelevant. Moreover, notwithstanding the fact that the AFIP report was admitted at claimant's request, the administrative law judge rationally determined that it did not address whether the miner died from coal workers' pneumoconiosis, but concerned issues of asbestosis and Agent Orange exposure. Hearing Transcript at 19-23.
The record reflects that the administrative law judge fully inquired into the evidentiary issues at the hearing consistent with his broad authority to conduct hearings, resolve procedural issues, and compile the hearing record. Id. at 14-21; see Dempsey v. Sewell Coal Corp., 23 BLR 1-47 (2004)(en banc); Shapell v. Director, OWCP, 7 BLR 1-304 (1984). In sum, the record does not reflect that admission of the autopsy report was improper, denied claimant due process, or detrimentally affected the administrative law judge's consideration of the medical opinion evidence in this claim. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-153 (1989)(en banc). We decline, therefore, to further address claimant's specific argument that the opinion of Dr. Askin should have been disallowed for the above reasons. Additionally, since claimant was represented by counsel at the depositions for which transcripts are in evidence, the...
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