V.C. v. Harman Mining Corp.
| Decision Date | 14 July 2008 |
| Docket Number | BRB 07-0824 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | V.C. Claimant-Respondent v. HARMAN MINING CORPORATION 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UNPUBLISHED OPINION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 of Larry S. Merck, Administrative Law Judge, United States Department of Labor.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer/carrier (employer) appeals the Decision and Order (05-BLA-5166) of Administrative Law Judge Larry S. Merck (the administrative law judge) awarding 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). This case involves a request for modification of a subsequent claim. The pertinent procedural history of this case is as follows: Claimant filed his first claim on March 2, 1983. Director's Exhibit 1. It was finally denied by Administrative Law Judge Robert A. Giannasi on September 11, 1987, because claimant failed to establish the existence of pneumoconiosis and that he was totally disabled by the disease. Id. Claimant filed his second claim on October 18, 1990. Director's Exhibit 2. It was finally denied by the district director on July 16 1991, because the evidence did not show that claimant was totally disabled by pneumoconiosis. Id. Claimant filed his third claim on June 3, 1994. Director's Exhibit 3. It was finally denied by the district director on November 10, 1994, because the evidence did not show that claimant was totally disabled by pneumoconiosis. Id. Claimant filed his fourth claim on April 8, 1997. Director's Exhibit 4. It was finally denied by the district director on August 6, 1997, because the evidence did not show that claimant was totally disabled by pneumoconiosis. Id. Claimant filed this claim on December 14, 2001. Director's Exhibit 5. It was denied by the district director on July 8, 2003, because the evidence did not show that claimant had pneumoconiosis, that the disease was caused by his coal mine work, and that he was totally disabled by the disease. Director's Exhibit 25.
Claimant filed this request for modification on August 20, 2003. Director's Exhibit 27. In a Decision and Order dated June 5, 2007, the administrative law judge credited claimant with more than thirty-seven years of coal mine employment [1]and adjudicated this subsequent claim pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge found that the medical evidence developed since the prior denial of benefits established total disability pursuant to 20 C.F.R. §718.204(b). Consequently, the administrative law judge found that the new evidence established a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309. On the merits, the administrative law judge found that the evidence established the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R §§718.202(a), 718.203(b). The administrative law judge also found that the evidence established total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b), (c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer contends that the administrative law judge erred in failing to properly consider claimant's request for modification at 20 C.F.R. §725.310. Employer also challenges the administrative law judge's finding that the new evidence established total disability at 20 C.F.R. §718.204(b)(2)(ii), (iv). Further, employer challenges the administrative law judge's finding that the evidence established the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(1), (4). Lastly, employer challenges the administrative law judge's finding that the evidence established total disability due to pneumoconiosis at 20 C.F.R. §718.204(c). Neither claimant nor the Director, Office of Workers' Compensation Programs, has filed a brief in this 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. 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).
MODIFICATIONEmployer initially contends that “[the administrative law judge] erred in failing to consider the claimant's request for modification as a request for modification….” [3] Employer's Brief at 13. We disagree. Contrary to employer's assertion, the administrative law judge acknowledged that this case involved a request for modification of a subsequent claim, because claimant filed the request for modification within one year of the district director's prior denial of benefits. Decision and Order at 7. The administrative law judge also noted that the district director denied claimant's prior claim, on the grounds that the evidence did not establish total disability or total disability due to pneumoconiosis. Id. Further, the administrative law judge indicated that because the case had not progressed beyond the district director level, he had to determine whether the evidence submitted since the district director's 1997 denial of benefits established a change in an applicable condition of entitlement at 20 C.F.R. §725.309, rather than whether the evidence established a basis for modification at 20 C.F.R. §725.310. Id. at 7-8. The administrative law judge specifically stated:
Accordingly, I shall determine whether the evidence submitted since the previous denial became final in 1997 is sufficient to establish a change in one of the applicable conditions of entitlement adjudicated against [c]laimant in his previous claim. If there is a change in a condition, then I must review the entire record to determine whether [c]laimant is entitled to benefits under the Act.
The Board has held that in considering whether a claimant has established a change in conditions at 20 C.F.R. §725.310, an 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. 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).
Where 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). The “applicable conditions of entitlement” are “those conditions upon which the prior denial was based.” 20 C.F.R. §725.309(d)(2); Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1996)(en banc), rev'g 57 F.3d 402, 19 BLR 2-223 (4th Cir. 1995)( under former provision that claimant must establish at least one element of entitlement previously adjudicated against him).
As noted above, the prior claim was denied by the district director on August 6, 1997, because the evidence did not show that claimant was totally disabled by pneumoconiosis. Director's Exhibit 4. The subsequent claim was denied by the district director on July 8, 2003, because the evidence did not show that claimant had pneumoconiosis, that the disease was caused by his coal mine work, and that he was totally disabled by the disease. Director's Exhibit 25. Because claimant filed a request for modification of the district director's denial of benefits in the subsequent claim, the issue properly before the administrative law judge was whether the medical evidence developed since the denial of benefits in the prior claim (i.e., the evidence developed since the district director's August 6, 1997 denial of benefits) established a change in an applicable condition of entitlement at 20 C.F.R. §725.309 and, thereby, established a change in conditions at 20 C.F.R. §725.310. [4] 20 C.F.R. §725.309(d)(2), (3); 20 C.F.R. §725.310; see also Hess v. Director, OWCP, 21 BLR 1-141 (1998).
Here, the administrative law judge did not render a specific finding with regard to whether the new evidence established a change in conditions or a mistake in a determination of fact at 20 C.F.R. §725.310. Nonetheless, the administrative law judge found that the evidence developed since the district director's August 6, 1997 denial of benefits in the prior claim established total disability at 20 C.F.R. §718.204(b). The administrative law judge therefore found that the new evidence established a change in an applicable condition of entitlement at 20 C.F.R. §725.309. Because the administrative law judge applied the correct standard for determining whether the evidence established modification in this case involving a request for modification of a subsequent claim, see 20 C.F.R. §§725.309 and 725.310, we reject employer's assertion that “[the administrative law judge] erred in failing to consider the claimant's request for modification as a request for modification….” Employer's Brief at 13.
Employer next contends that the administrative law judge erred in finding that the new arterial blood gas...
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