Sexton v. Buck Creek Coal Co., Inc., BRB 10-0191 BLA
| Decision Date | 11 February 2011 |
| Docket Number | BRB 10-0191 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | GAY NELL SEXTON Widow of and on behalf of FRABLE SEXTON Claimant-Respondent v. BUCK CREEK COAL COMPANY, INCORPORATED and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order - Award of Benefits in Miner's Claim and Award of Benefits in Survivor's Claim of Thomas F. Phalen, Jr., Administrative Law Judge, United States Department of Labor.
William Lawrence Roberts (William Lawrence Roberts, P.S.C.) Pikeville, Kentucky, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer.
Before: SMITH, HALL and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
SMITH Administrative Appeals Judge.
Employer appeals the Decision and Order - Award of Benefits in Miner's Claim and Award of Benefits in Survivor's Claim (2005-BLA-6156 and 2005-BLA-6157) of Administrative Law Judge Thomas F. Phalen, Jr. (the administrative law judge), rendered on a miner's subsequent claim and a survivor's claim filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) () (the Act). This case has a lengthy history. [1] The relevant procedural history of this case is as follows: The miner filed a subsequent claim on April 12, 2001 and the district director issued a Proposed Decision and Order awarding benefits. Director's Exhibits 3, 30. Employer requested a hearing. Director's Exhibit 33. The miner died on March 28, 2004, while his claim was pending before the Office of Administrative Law Judges (OALJ). Director's Exhibit 41. Claimant filed her survivor's claim on April 29, 2004. Director's Exhibit 43. The district director issued a Proposed Decision and Order awarding benefits in the survivor's claim, and employer requested a hearing. Director's Exhibits 89, 90. On June 16, 2004, Administrative Law Judge Rudolph L. Jansen remanded the miner's claim to the district director for a complete pulmonary evaluation because Dr. Hussain did not provide sufficient information in his July 27, 2001 medical report. Director's Exhibit 41 at 762. Subsequently, both the miner's claim and the survivor's claim were consolidated and sent to OALJ for a hearing, which was held on October 28, 2008. Director's Exhibit 99.
In a Decision and Order dated November 4, 2009, the administrative law judge found that the miner had twenty-five years of coal mine employment and adjudicated both claims pursuant to the regulations at 20 C.F.R. Part 718. With respect to both claims, the administrative law judge determined that the medical evidence was sufficient to establish that the miner suffered from clinical pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2) and legal pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4). With respect to the miner's claim, the administrative law judge determined that the miner was totally disabled due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b)(2), (c) and, therefore, found that claimant established a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309. On the merits, the administrative law judge weighed the newly submitted evidence against the evidence from the prior claims, and found that the preponderance of the evidence established that the miner was totally disabled due to pneumoconiosis. With respect to the survivor's claim, the administrative law judge found that the evidence was sufficient to establish that pneumoconiosis substantially contributed to, and/or hastened, the miner's death pursuant to 20 C.F.R. §718.205(c). Accordingly, the administrative law judge awarded benefits in both the miner's claim and the survivor's claim.
On appeal, employer challenges the administrative law judge's finding, in the miner's claim, that claimant established a change in an applicable condition of entitlement at 20 C.F.R. §725.309. Specifically, employer asserts that the administrative law judge was precluded from finding that there had been a “material change” in the miner's condition since the denial of his prior claim. Employer's Brief in Support of Petition for Review at 17-18. In support of its contention, employer asserts that the miner's subsequent claim must be barred under the principles of res judicata. Moreover, although employer does not challenge the administrative law judge's finding that claimant established the existence of clinical pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2), employer contends that the administrative law judge erred in finding that claimant also established the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4) in both claims. In addition, regarding the survivor's claim, employer argues that the administrative law judge erred in finding that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).
Claimant responds, urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a letter brief, asserting that the administrative law judge performed the proper analysis under 20 C.F.R. §725.309 and that, contrary to employer's assertion, the subsequent claim is not barred by the principles of res judicata. Employer has filed a reply brief reiterating its arguments on appeal. [2]
The Board's scope of review is defined by statute. 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. [3] 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).
In order to establish entitlement to benefits in a miner's claim pursuant to 20 C.F.R. Part 718, claimant must prove that the miner suffered from pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, that the miner was totally disabled and that his disability was due to pneumoconiosis. See 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes a finding of entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
In addition, when a miner files a claim for benefits more than one year after the final denial of a previous claim, the subsequent claim must also be denied unless the administrative law judge finds that “one of the applicable conditions of entitlement . . . has changed since the date upon which the order denying the prior claim became final.” 20 C.F.R. §725.309(d); see White v. New White Coal Co., 23 BLR 1-1, 1-3 (2004). The “applicable conditions of entitlement” are “those conditions upon which the prior denial was based.” 20 C.F.R. §725.309(d)(2). In this case, the miner's prior claim was denied because the evidence was insufficient to establish that the miner's total disability was due to pneumoconiosis. Director's Exhibit 1. Therefore, claimant had to submit new evidence establishing this element of entitlement in order to have the administrative law judge review the subsequent claim on the merits. See White, 23 BLR at 1-3.
Employer challenges the administrative law judge's finding that claimant established a change in an applicable condition of entitlement in the miner's claim. Employer asserts that, because the miner was determined to be totally disabled by his cigarette smoking in the prior claim, and did not return to work after that finding, there is no evidence to support a finding of “a material change in condition[s].” Employer's Brief in Support of Petition for Review at 17-18. Employer maintains that the “fact that Dr. Alam - or anyone else - now says that coal mining is also the source of [the miner's] disease and disability provides no valid reason to find entitlement.” Id. at 18. Employer further contends that, because the miner did not establish disability causation in the prior claim, common law principles of res judicata preclude reconsideration of whether the miner's disabling respiratory impairment is due to coal dust exposure in this subsequent claim, as the etiology of the miner's disabling respiratory condition is not subject to change. Id. Employer also argues that the Id. at 21-22. Employer asserts that it “is manifestly unfair to impose a perpetual litigation regime on mine operators where, as here, there is no valid justification for doing so, ” and urges the Board to vacate the administrative law judge's findings pursuant to 20 C.F.R. §725.309. Id.
Employer's allegation, that claimant is unable to establish a “material change” in his condition, is without merit. Employer's Brief in Support of Petition for Review at 17. Although the prior version of 20 C.F.R. §725.309 required a claimant to demonstrate a “material change in condition, ” the revised version of 20 C.F.R §725.309 requires a claimant to demonstrate a “change in an applicable condition of entitlement” by submitting new evidence establishing an element of entitlement previously adjudicated against claimant...
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