Mann v. Turner Brothers, Incorporated
| Decision Date | 27 September 2006 |
| Docket Number | BRB 06-0166 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BOBBY D. MANN Claimant-Petitioner v. TURNER BROTHERS, INCORPORATED 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UNPUBLISHED OPINION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 Living Miner's Benefits of Thomas M. Burke, Administrative Law Judge, United States Department of Labor.
Bobby D. Mann, Wister, Oklahoma, pro se.
Laura Metcoff Klaus (Greenberg Traurig, LLP), Washington, D.C., for employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order Denying Living Miner's Benefits (04-BLA-0164) of Administrative Law Judge Thomas M Burke 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). This case has an extensive procedural history, which was previously set out in the Board's Decision and Order issued on September 24, 2003. Mann v. Turner Brothers Inc., BRB No. 03-0284 BLA (Sept. 24, 2003)(unpub.). In that Decision and Order, the Board held that there was no substantial issue to review on appeal and, therefore, the Board affirmed the administrative law judge's denial of benefits. The Board held that the findings of Administrative Law Judge Pamela Lakes Wood, that claimant failed to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4), were supported by substantial evidence. Mann v. Turner Brothers, Inc., BRB No 03-0284 BLA (Sept. 24, 2003)(unpub.). The Board denied claimant's request for reconsideration. Mann v. Turner Brothers, Inc., BRB No. 03-0284 BLA (Jan. 22, 2004)(Order)(unpub.). In a letter dated February 3, 2004, claimant requested modification of the Board's January 22, 2004 Order. Director's Exhibit 114.
On October 4, 2005, the administrative law judge issued his Decision and Order Denying Living Miner's Benefits, which is the subject of the instant appeal. After considering the procedural history of this case, the administrative law judge reviewed Judge Wood's 2002 Decision and Order and the evidence of record. The administrative law judge determined that there was no basis to modify the 2002 Decision and Order denying benefits. Therefore, the administrative law judge denied benefits.
In support of his appeal, claimant has submitted several letters to the Board asserting that the administrative law judge erred in relying on Dr. Renn's opinion, and that the administrative law judge erred in stating that Dr. R. B. Winters was his treating physician. Claimant also argues that the prior finding of pneumoconiosis, which was upheld by the Tenth Circuit, should be binding on the parties in this case. Employer responds, urging affirmance of the administrative law judge's denial of benefits. The Director, Office of Workers' Compensation Programs, has not filed a brief in this appeal.
In an appeal by a claimant filed without the assistance of counsel, the Board will consider the issue raised to be whether the Decision and Order below is supported by substantial evidence. Hodges v. Bethenergy Mines, Inc., 18 BLR 1-84 (1994); 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 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).
As an initial matter, we reject claimant's argument that he has established entitlement because he has, at different points in the adjudication of his claims, been found to have established each of the elements of entitlement. While Administrative Law Judge Robert S. Amery found the existence of pneumoconiosis established in 1995, a finding which was affirmed by both the Board and the United States Court of Appeals for the Tenth Circuit, and Judge Wood found the evidence submitted after Judge Amery's denial sufficient to establish total disability, claimant has not established entitlement to benefits. 20 C.F.R. §725.310(a) (2000). Under modification, pursuant to Section 725.310 (2000), prior findings are subject to re-evaluation by the adjudicator. King v. Jericol Mining, Inc., 246 F.3d 822, 22 BLR 2-305, (6th Cir. 2001); Jonida Coal Co. v. Hunt, 124 F.3d 739, 21 BLR 2-203 (6th Cir. 1997); Nataloni v. Director, OWCP, 17 BLR 1-82 (1993). Moreover, the record now contains additional evidence that must be considered by the adjudicator. Consequently, we reject claimant's assertion that the earlier findings are binding on the parties.
In view of Judge Wood's finding that claimant had established both a change in conditions pursuant to Section 725.310 (2000), and a material change in conditions pursuant to 20 C.F.R. §725.309(d) (2000), we review her findings on the merits to determine whether claimant has established a basis for modification of her 2002 Decision and Order. Judge Wood found the evidence insufficient to establish the existence of pneumoconiosis and, therefore, she did not consider the other elements of entitlement. The Board held that Judge Wood's findings pursuant to Section 718.202(a) were supported by substantial evidence. See Mann, BRB No. 03-0284 BLA.
Section 22 of the Longshore Act, 33 U.S.C. §922, provides in part:
Upon his own initiative, or upon the application of any party in interest…on the ground of a change in conditions or because of a mistake in a determination of fact by the [administrative law judge], the [administrative law judge] may, at any time prior to one year after the date of the last payment of compensation…or at any time prior to one year after the rejection of a claim, review a compensation case…in accordance with the procedure prescribed in respect of claims in section 919 of this title, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation….
33 U.S.C. §922.
“[B]y its plain language, 33 U.S.C. §922 is a broad reopening provision that is available to employers and employees alike.” King, 246 F.3d at 825, 22 BLR at 2-310. When a request for modification is filed, “[t]he fact-finder has the authority, if not the duty, to rethink prior findings of fact and to reconsider all evidence for any mistake in fact, ” Hunt, 124 F.3d at 743, 21 BLR at 2-210, including whether the “ultimate fact” was “wrongly decided.” Consolidation Coal Co. v. Worrell, 27 F.3d 227, 230, 18 BLR 2-290, 2-296 (6th Cir. 1994).
Modification may be established by showing that there has been a change in conditions or a mistake in a determination of fact since the prior decision. 20 C.F.R. §725.310 (2000). The Board has held that in considering whether a claimant has established a change in conditions, 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 at least one element of entitlement which defeated entitlement in the prior decision. See Nataloni v. Director, OWCP, 17 BLR 1-82 (1993). In considering whether modification is established based on a mistake in a determination of fact, the administrative law judge must consider the entirety of the evidentiary record. See Nataloni, supra.
We first consider the administrative law judge's finding pursuant to 20 C.F.R. §718.202(a)(1). The administrative law judge incorporated by reference Judge Wood's summary of the evidence and he detailed the evidence submitted subsequent to her 2002 Decision and Order. [1] In evaluating the x-ray evidence, the administrative law judge noted that the Board had affirmed Judge Wood's finding that the x-ray evidence did not establish the existence of pneumoconiosis, and he found that none of the newly submitted x-ray interpretations diagnosed coal workers' pneumoconiosis. The administrative law judge found that the chest x-ray evidence does not support a finding of pneumoconiosis pursuant to Section 718.202(a)(1).
A review of the record reveals no mistake in Judge Wood's evaluation of the x-ray evidence pursuant to Section 718.202(a)(1), a finding that the Board previously found to be supported by substantial evidence. Further, the administrative law judge correctly found that none of the newly submitted x-ray interpretations diagnoses coal workers' pneumoconiosis. Therefore, we affirm the administrative law judge's finding that claimant has not established a mistake in fact or a change in conditions pursuant to Section 718.202(a)(1). [2]
The administrative law judge also considered complicated pneumoconiosis and 20 C.F.R. §718.304, the only presumption from 20 C.F.R. §718.202(a)(3) that is applicable in this case. Decision and Order at 13-14. The administrative law judge noted Judge Wood's evaluation of the evidence of a large nodule in claimant's lung. See 2002 Decision and Order at 12-13. The administrative law judge determined that the evidence does not establish the existence of complicated pneumoconiosis and does not invoke the presumption contained in Section 718.304, and he noted that the record does not contain any newly submitted evidence diagnosing complicated pneumoconiosis.
Because a review of the record reveals no mistake in Judge Wood's finding pursuant to Section 718.304, which the Board previously found supported by substantial evidence, we affirm...
To continue reading
Request your trial