Kosydar v. Director, Office of Workers' Compensation Programs, BRB 99-0372 BLA
| Decision Date | 18 January 2000 |
| Docket Number | BRB 99-0372 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ANNA C. KOSYDAR Widow of JOSEPH KOSYDAR Claimant-Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Thomas F. Phalen, Jr. Administrative Law Judge, United States Department of Labor.
Thomas E. Johnson and Anne Megan Davis (Johnson, Jones, Swelling Gilbert & Davis), Chicago, Illinois, for claimant.
Rita Roppolo (Henry L. Solano, 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: SMITH and BROWN, Administrative Appeals Judges, and NELSON, Acting Administrative Appeals Judge.
DECISION AND ORDER
Claimant appeals the Decision and Order (97-BLA-0292) of Administrative Law Judge Thomas F. Phalen, Jr., denying benefits on a miner's claim and a survivor'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). This case is before the Board for the third time.[1] The administrative law judge credited the miner with five years of coal mine employment and found that no mistake in a determination of fact had been established pursuant to 20 C.F.R. §725.310 regarding the fact that the existence of pneumoconiosis was not established pursuant to 20 C.F.R §718.202(a)(1)-(4). Accordingly, benefits were denied in both the miner's and the survivor's claims.
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).
Pursuant to Section 22 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §922, as incorporated into the Act by 30 U.S.C. §932(a) and as implemented by 20 C.F.R. §725.310, a party may request modification of a denial on the grounds of a change in conditions or because of a mistake in a determination of fact.[2] If a claimant merely alleges that the ultimate fact was wrongly decided, the administrative law judge may, if he chooses, accept this contention and modify the final order accordingly (i.e., "there is no need for a smoking gun factual error, changed conditions or startling new evidence"), see Keating v. Director, OWCP, 71 F.3d 1118, 20 BLR 2-53 (3d Cir. 1995), quoting Jessee v. Director, OWCP, 5 F.3d 723, 725, 18 BLR 2-26-28 (4th Cir. 1993). In order to establish entitlement to benefits under Part 718 in a miner's claim, it must be established that the miner suffered from pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis was totally disabling. 20 C.F.R. §§718.3; 718.202; 718.203; 718.204; Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986). Failure to prove any one of these elements precludes entitlement, id. In a survivor's claim filed prior to January 1, 1982, Director's Exhibit 12, entitlement may be established based on a finding that the miner was totally disabled due to pneumoconiosis at the time of his death, see 20 C.F.R. §718.1; Trent, supra; Perry, supra, or if the evidence of record establishes that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(b), see 20 C.F.R. §§718.1, 725.212(a)(3)(ii); Foreman v. Peabody Coal Co., 8 BLR 1-371 (1985). Moreover, in this case arising within the jurisdiction of the Third Circuit Court, if pneumoconiosis actually hastened the miner's death, then pneumoconiosis is a substantially contributing cause of death for purposes of Section 718.205, see Lukosevicz v. Director, OWCP, 888 F.2d 1001, 13 BLR 2-101 (3d Cir. 1989).
Initially, claimant contends that the administrative law judge erred in failing to consider whether the lay evidence of record established entitlement under Part 718 pursuant to 20 C.F.R. §§718.202, 718.203(c) and 718.204(c)(5) in the miner's and survivor's claims filed prior to 1981. We agree. The Third Circuit Court held in Keating, supra; see also Hillibush v. U.S. Department of Labor, 853 F.2d 197, 11 BLR 2-223 (3d Cir. 1988), that under Section 718.202, in claims filed prior to January 1, 1982, the claimant can rely solely on lay testimony, due to the lack of medical evidence resulting from "lost, destroyed or incomplete" medical evidence, [3] see Section 413(b) of the Act, 30 U.S.C. §923(b); 20 C.F.R. §718.202(c).[4] Contrary to the administrative law judge's findings, Decision and Order at 8, both the miner's and the survivor's claims were filed prior to January 1, 1982, Director's Exhibit 12, and, therefore, Section 718.202(c) is applicable. Moreover, the Third Circuit Court has held that "all types of relevant evidence must be weighed together in determining whether claimant has met its burden of establishing the existence of pneumoconiosis pursuant to Section 718.202, see Penn Allegheny Coal Co. v. Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997). Consequently, we vacate the administrative law judge's finding that the existence of pneumoconiosis was not established pursuant to Section 718.202 and remand the case for reconsideration of all relevant evidence, including the lay evidence of record, pursuant to Sections 725.310 and 718.202(a) and (c), and pursuant to 20 C.F.R. §718.203(c), if reached, see Keating, supra.
In addition, the Third Circuit Court has held that in a survivor's case, the administrative law judge may consider whether the lay evidence of record establishes total disability pursuant to Section 413(b) of the Act, as implemented by 20 C.F.R. §718.204(c)(5), where the evidence is insufficient to establish total disability pursuant to subsections (c)(1)-(c)(4), see Hillibush v. U.S. Department of Labor, 853 F.2d 197, 11 BLR 2-223 (3d Cir. 1988). The Board has construed Hillibush to mean that Section 718.204(c)(5) is not available where the medical evidence of record affirmatively establishes "that no lung disease was present, " see Pekala v. Director, OWCP, 13 BLR 1-1 (1989). The Director contends that consideration of lay evidence under Section 718.204(c)(5) is precluded because there is relevant medical evidence which establishes that claimant only suffered from cardiac disease, not lung disease. However, neither the administrative law judge or Judge Campbell considered whether the medical evidence of record affirmatively establishes "that no lung disease was present, " see Pekala, supra, but only whether the existence of pneumoconiosis was established pursuant to Section 718.202(a)(1), (4). Moreover, the Board's scope of review is a narrow one that can be exceeded if it engages in the initial consideration of evidence, which is the responsibility of the administrative law judge, see Bozick v. Consolidation Coal Co., 732 F.2d 64, 6 BLR 2-23 remanded for recon., 735 F.2d 1017, 6 BLR 2-119 (6th Cir. 1984). When the administrative law judge does not make the necessary findings, remand to the administrative law judge is necessary as the Board lacks jurisdiction to provide factual findings to augment any gaps in the administrative law judge's opinion. Director, OWCP v. Rowe, 710 F.2d 251, 5 BLR 2-99 (6th Cir. 1983); see also Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989); Worley v. Blue Diamond Coal Co., 12 BLR 1-20 (1988). Thus, if the administrative law judge considers Section 718.204(c) on remand and finds the evidence of record insufficient to establish total disability pursuant to subsections (c)(1)-(c)(4), he should also consider the applicability of Section 718.204(c)(5), in accordance with the holdings in Hillibush, supra, and Pekala, supra.[5]
Next, claimant contends that the administrative law judge failed to consider all of the relevant evidence of record in not finding ten years of coal mine employment established. Thus, claimant contends that the administrative law judge erred in failing to consider entitlement pursuant to the interim presumption at 20 C.F.R. §727.203 and, specifically, in failing to consider whether the lay evidence of record established invocation of the interim presumption at 20 C.F.R. §727.203(a)(5). The Director responds, agreeing that the administrative law judge failed to consider all of the relevant evidence of record in considering the length of the miner's coal mine employment, but contending that such error was harmless because the medical evidence "clearly suggests" the lack of total pulmonary or respiratory disability, thereby precluding consideration of lay evidence pursuant to Section 727.203(a)(5) and the Director contends that the lay evidence fails to establish total pulmonary or respiratory disability.
Claimant and the Director, properly note that the administrative law judge did not discuss the 1972 medical report of Dr. Niemeyer, issued just prior to the miner's death, which stated that claimant had ten to fifteen years of coal mine employment, Director's Exhibit 12. See Tackett v. Director, OWCP, 7 BLR 1-703 (1985).[6] Consequently, we vacate the administrative law judge's finding, see Tackett, supra, and remand the case for reconsideration. If the administrative law judge finds at least ten years of coal mine employment established on remand, the interim presumption at Section 727.203, as written, is applicable, inasmuch...
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