Bertha L. Colvin, widow of Foster Colvin v. Eastover Mining Company (Board decision, August 7, 2019)

BRB final decision. This unpublished reconsideration order is not precedent. The Benefits Review Board denied Bertha Colvin's timely reconsideration motion and left its earlier affirmance of the survivor benefits denial in place. Board finality is governed by 20 C.F.R. § 802.406; this order disposes of the reconsideration request under 20 C.F.R. §§ 802.407 and 802.409.

Plain-English summary

Bertha Colvin sought reconsideration after the Board affirmed the denial of survivor benefits on her late husband Foster Colvin's black lung claim. The Board had found no qualifying proof that he was totally disabled by a respiratory condition before his cardiac-related death and no evidence that pneumoconiosis caused or hastened his death. Bertha pointed to a 1991 Kentucky workers' compensation disability award, but the Board said it did not state the criteria for that award and therefore did not prove disability under the federal Black Lung Benefits Act. The Board also could not consider a Social Security award that was not admitted before the administrative law judge. It denied reconsideration and left the earlier decision in place.

Decision snapshot

• Authority: Reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. §§ 802.407(a) and 802.409.
• Outcome: Reconsideration denied; earlier affirmance of survivor benefits denial remains in place.
• Key point: A state disability award without stated criteria did not establish total respiratory disability under the federal Act.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 18-0278 BLA
Case No. 2016-BLA-05421

BERTHA L. COLVIN
)
(Widow of FOSTER COLVIN)
)
)
Claimant-Petitioner
)
)
v. ) DATE ISSUED: 08/07/2019
)
EASTOVER MINING COMPANY
)
)
Employer-Respondent
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
) ORDER on
Party-in-Interest
) RECONSIDERATION

Claimant, the deceased miner’s widow who is without counsel, has filed a timely motion for reconsideration of the Board’s decision in Colvin v. Eastover Mining Co., BRB No. 18-0278 BLA (Apr. 15, 2019) (unpub.), affirming the administrative law judge’s denial of benefits. 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407(a). Neither employer nor the Director, Office of Workers’ Compensation Programs, has filed a response to claimant’s motion. We deny claimant’s motion and affirm the Board’s decision.

In its decision, the Board held that claimant is not entitled to the benefit of the rebuttable presumption that the miner’s death was due to pneumoconiosis because the miner was not totally disabled by a pulmonary or respiratory condition prior to his cardiac- related death.1 30 U.S.C. §921(b)(4) (2012); 20 C.F.R. §§718.204(b)(2), 718.305(c)(2). The Board further affirmed the finding that claimant did not present any evidence that the miner’s death was due to or hastened by pneumoconiosis. 20 C.F.R. §718.205(b). The Board fully addressed all relevant medical evidence under the appropriate legal standards and there is no basis for reconsideration of the Board’s decision.

Claimant’s motion references the 1991 disability award the miner received from the Kentucky Department of Workers’ Claims.2 See Director’s Exhibit 17 at 8-12. Because this decision does not state the legal or medical criteria used in awarding benefits, it is not sufficient to establish that the miner was totally disabled under the federal Black Lung Benefits Act. See Clark v. Karst-Robbins Coal Co., 12 BLR-1-149 (1989) (en banc).

1
This decision was based on the following: (1) the miner’s only pulmonary function study did not establish he was totally disabled; (2) the record does not contain any blood gas studies or evidence the miner suffered from cor pulmonale with right-sided congestive heart failure; and (3) Dr. Rosenberg’s opinion that the miner was not disabled from a chronic respiratory or pulmonary condition prior to the onset of acute respiratory failure due to his cardiac arrest caused by septic shock.

2
Claimant’s motion also references a disability award the miner received from the Social Security Administration. See Tr. at 21. Even if claimant had attached a copy of this award to her motion for reconsideration, the Board could not consider it because it was not admitted into the record before the administrative law judge. 20 C.F.R. §802.301(b). The attachment to claimant’s motion is an excerpt from the decision on the miner’s 1991 claim under the Black Lung Benefits Act, which was denied. Director’s Exhibit 17 at 2-7.

2
 Accordingly, we deny claimant’s motion for reconsideration. 20 C.F.R.
§§801.301(c); 802.409. The Board’s decision is affirmed.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

RYAN GILLIGAN
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

3