Patty S. Carter (Widow Of Billy R. Carter) Claimant-Petitioner V. Consolidation / Itmann Coal Company In A Silicosis Lawsuit

dol.gov, Mar 09, 2005

99-BLA-1014) of Administrative Law Judge Fletcher E. Campbell, Jr., denying
benefits on 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).[2]   The administrative
law judge credited the miner with  two years and eight months of coal mine
employment and found that the miner had  pneumoconiosis arising out of coal mine
employment pursuant to 20 C.F.R. §§718.202, 718.203 (2000).  However, the
administrative law judge denied benefits finding that the evidence was insufficient
to establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R.
§718.205 (2000).
     In the instant appeal, claimant challenges the administrative law judge's
weighing of the evidence at Section 718.205(c) (2000).  Employer responds, urging
affirmance.  The Director, Office of Workers' Compensation Programs, has not
participated in the merits of this appeal.
     Pursuant to a lawsuit challenging revisions to forty-seven of the regulations
implementing the Act, the United States District Court for the District of Columbia
granted limited injunctive relief and stayed, for the duration of the lawsuit, all
claims pending on appeal before the Board under the Act, except for those in which
the Board, after briefing by the parties to the claim, determines that the
regulations at issue in the lawsuit will not affect the outcome of the case.
National Mining Association v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9,
2001)(order granting preliminary injunction).  In the present case, the Board
established a briefing schedule by order issued on February 21, 2001, to which only
employer and the Director have responded.[3] 
Based on the briefs submitted by employer and the Director, and our review, we hold
that the disposition of this case is not impacted by the challenged regulations.[4]   Therefore, the Board will proceed to adjudicate
the merits of this appeal
          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).
     In order to establish entitlement to survivor's benefits under 20 C.F.R. Part
718 in a claim filed after January 1, 1982, claimant must establish that the miner
had pneumoconiosis arising out of coal mine employment and that the miner's death
was due to pneumoconiosis, that pneumoconiosis was a substantially contributing
cause or factor leading to the miner's death, that the miner's death was caused by
complications of pneumoconiosis, or that the miner had complicated pneumoconiosis.
20 C.F.R. §§718.1, 718.202, 718.203, 718.205(c), 718.304 (2000); see
Shuff v. Cedar Coal Co., 967 F.2d 977, 16  BLR 2-90  (4th Cir. 1992) cert.
denied, 113 S.Ct. 969 (1993);[5]
Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993); Neeley v. Director,
OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP, 11 BLR 1-39 (1988).
The United States Court of Appeals for the Fourth Circuit, within whose
jurisdiction this case arises, has held that evidence demonstrating that
pneumoconiosis hastened the miner's death establishes that pneumoconiosis was a
substantially contributing cause of the miner's death pursuant to Section
718.205(c) (2000).  See Shuff, supra.
     After consideration of the administrative law judge's Decision and Order, the
arguments raised on appeal and the evidence of record, we conclude that the
administrative law judge's Decision and Order is supported by substantial evidence
and contains no reversible error therein. Claimant argues that the administrative
law judge erred in his consideration of the evidence relevant to the cause of the
miner's death by failing to credit the opinion of Dr. Green who stated that the
miner's death was due to interstitial fibrosis and silicosis arising out of his
coal dust exposure, with ischemic heart disease as a contributing factor, and by
crediting the opinion of Dr. Bush who diagnosed minimal silicosis which did not
contribute to the miner's death which he concluded was due to idiopathic pulmonary
fibrosis