Howard Hays v. Begwell Trucking, Incorporated (Board decision, May 29, 2020)

BRB final decision. This unpublished decision is not precedent. The Board affirmed the denial of Howard Hays's black lung benefits claim. A Board decision ordinarily becomes final 60 days after issuance unless a timely petition for judicial review or Board reconsideration is filed under 20 C.F.R. § 802.406. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Howard Hays sought black lung benefits after twenty-six years of coal mine work. The judge found that Hays had not proved a totally disabling respiratory impairment, which was necessary both for entitlement and for the fifteen-year presumption. On Hays's appeal without a lawyer, the Board upheld the judge's assessment of mostly nonqualifying breathing tests, nonqualifying blood gas tests, and medical opinions that did not support total disability. The Board affirmed the denial of benefits.

Decision snapshot

• Authority: Total disability under 20 C.F.R. § 718.204(b)(2); presumption under 30 U.S.C. § 921(c)(4).
• Outcome: Denial of black lung benefits affirmed.
• Key point: Mine work length alone did not trigger the presumption without proof of total respiratory disability.

Full text (DOL BRB public release)

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

BRB No. 19-0301 BLA

HOWARD HAYS
)
)
Claimant-Petitioner
)
)
v. )
)
BEGWELL TRUCKING,
)
INCORPORATED,
)
)
and
)
)
KENTUCKY EMPLOYERS MUTUAL
) DATE ISSUED: 05/29/2020
INSURANCE
)
)
Employer/Carrier-
)
Respondents
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
) DECISION and ORDER

Appeal of the Decision and Order Denying Benefits of John P. Sellers, III, Administrative Law Judge, United States Department of Labor.

Howard Hays, Jackson, Kentucky.

William A. Lyons (Lewis and Lewis Law Offices), Hazard, Kentucky, for employer/carrier.

Before: BOGGS, Chief Administrative Appeals Judge, GRESH and JONES, Administrative Appeals Judges.

PER CURIAM:
 Claimant, without the assistance of counsel,1 appeals the Decision and Order Denying Benefits (2017-BLA-05500) of Administrative Law Judge John P. Sellers, III, rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C.
§§901-944 (2012) (the Act). This case involves a claim filed on April 8, 2016.

After crediting claimant with twenty-six years of coal mine employment,2 the administrative law judge found claimant failed to establish he is totally disabled and therefore could not invoke the rebuttable presumption of total disability due to pneumoconiosis, 30 U.S.C. §921(c)(4) (2012),3 or establish entitlement under 20 C.F.R. Part 718. Accordingly, he denied benefits.

On appeal, claimant generally challenges the denial of benefits. Employer responds in support of the denial of benefits. The Director, Office of Workers’ Compensation Programs, has not filed a response brief.

As claimant filed this appeal without the assistance of counsel, the Board considers whether substantial evidence supports the Decision and Order Denying Benefits. Hodges v. BethEnergy Mines, Inc., 18 BLR 1-84 (1994). We must affirm the administrative law judge’s findings of fact and conclusions of law if they 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).

1
On claimant’s behalf Diane Jenkins, a benefits counselor with Stone Mountain Health Services of St. Charles, Virginia, requested the Board review the administrative law judge’s decision, but Ms. Jenkins is not representing claimant on appeal. See Shelton v. Claude V. Keen Trucking Co., 19 BLR 1-88 (1995) (Order).
2
Claimant’s coal mine employment occurred in Kentucky. Hearing Transcript at

13. Accordingly, this case arises within the jurisdiction of the United States Court of
    Appeals for the Sixth Circuit. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc).
    3
    Section 411(c)(4) of the Act provides a rebuttable presumption that a miner is
    totally disabled due to pneumoconiosis in cases where the claimant establishes at least fifteen years in underground coal mine employment, or in surface mine employment in conditions substantially similar to those in an underground mine, and a totally disabling respiratory impairment. 30 U.S.C. §921(c)(4) (2012); see 20 C.F.R. §718.305.

                                          2
    

    To be entitled to benefits under the Act, claimant must establish disease (pneumoconiosis); disease causation (it arose out of coal mine employment); disability (a totally disabling respiratory or pulmonary impairment); and disability causation (pneumoconiosis substantially contributed to the disability). 30 U.S.C. §901; 20 C.F.R.
    §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes an award of benefits. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1- 112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).

    A miner is totally disabled if he has a pulmonary or respiratory impairment which,
    standing alone, prevents him from performing his usual coal mine work and comparable gainful work.4 See 20 C.F.R. §718.204(b)(1). A claimant may establish total disability based on pulmonary function studies, arterial blood gas studies, evidence of pneumoconiosis and cor pulmonale with right-sided congestive heart failure, or medical opinions. 20 C.F.R. §718.204(b)(2)(i)-(iv). The administrative law judge must weigh all relevant supporting evidence against all relevant contrary evidence. See Rafferty v. Jones
    & Laughlin Steel Corp., 9 BLR 1-231, 1-232 (1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195, 1-198 (1986), aff’d on recon., 9 BLR 1-236 (1987) (en banc).

    The record contains five pulmonary function studies conducted on February 4, 2016,
    April 25, 2016, January 13, 2017, January 16, 2017, and January 25, 2017. Director’s Exhibit 14; Claimant’s Exhibits 4, 5; Employer’s Exhibits 12, 14. The administrative law judge noted that only the pre-bronchodilator portion of the April 25, 2016 pulmonary function study produced qualifying values.5 Decision and Order at 11; Director’s Exhibit
    14. Based upon the preponderance of non-qualifying pulmonary function studies,
    including the most recent study, the administrative law judge found that the pulmonary function study evidence did not establish total disability. Decision and Order at 11-
    12. Because it is based upon substantial evidence, we affirm this finding. 20 C.F.R.
    §718.204(b)(2)(i); see Martin v. Ligon Preparation Co., 400 F.3d 302, 305 (6th Cir. 2005)

    4
    The administrative law judge accurately found no evidence of complicated
    pneumoconiosis in the record. Decision and Order at 11. Claimant, therefore, cannot invoke the irrebuttable presumption of total disability due to pneumoconiosis under Section 411(c)(3) of the Act. 30 U.S.C. §921(c)(3); 20 C.F.R. §718.304.
    5
    A “qualifying” pulmonary function study or blood gas study yields values that are
    equal to or less than the applicable table values listed in Appendices B and C of 20 C.F.R. Part 718. A “non-qualifying” study exceeds those values. 20 C.F.R. §718.204(b)(2)(i), (ii).

                                        3
    

    (substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion).

     The administrative law judge accurately found the record contains no qualifying
    

    arterial blood gas studies6 or evidence of cor pulmonale with right-sided congestive heart failure. Decision and Order at 11-12. We therefore affirm his findings that claimant did not establish total disability at 20 C.F.R. §718.204(b)(2)(ii), (iii).

    The administrative law judge considered the medical opinions of Drs. Ajjarapu,
    

    Dahhan, and Rosenberg. Dr. Ajjarapu opined claimant is totally disabled from a pulmonary impairment, Director’s Exhibit 14, while Drs. Dahhan and Rosenberg opined claimant is not totally disabled from a pulmonary impairment. Employer’s Exhibits 15,
    18. The administrative law judge permissibly accorded greater weight to the opinions of
    Drs. Dahhan and Rosenberg that claimant is not totally disabled from a pulmonary standpoint because he found that they are better supported by the objective evidence of record. See Director, OWCP v. Rowe, 710 F.2d 251, 255 (6th Cir. 1983); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985); Decision and Order at 12. The administrative law judge also permissibly credited the opinions of Drs. Dahhan and Rosenberg based upon their superior qualifications.7 See Scott v. Mason Coal Co., 14 BLR 1-37 (1990) (en banc recon.); Dillon v. Peabody Coal Co., 11 BLR 1-113 (1988); Decision and Order at 12. Because it is based upon substantial evidence, we affirm the administrative law judge’s finding that the medical opinions did not establish total disability. 20 C.F.R.
    §718.204(b)(2)(iv).

    Because claimant did not establish total disability under 20 C.F.R.
    

    §718.204(b)(2)(i)-(iv), we affirm the administrative law judge’s determinations that claimant did not invoke the Section 411(c)(4) presumption or establish entitlement under 20 C.F.R. Part 718. See 30 U.S.C. §921(c)(4); Trent, 11 BLR at 1-27; Decision and Order at 10, 13.

    6
    The record contains three arterial blood gas studies conducted on April 25, 2016,
    January 13, 2017, and January 16, 2017. Director’s Exhibit 14; Employer’s Exhibits 12,
    14. All of these studies produced non-qualifying values.
    7
    The administrative law judge noted that while Drs. Dahhan and Rosenberg are
    Board-certified in internal medicine and pulmonary disease, Dr. Ajjarapu is Board-certified in family medicine. Decision and Order at 12; Director’s Exhibit 19; Employer’s Exhibits 12, 14.

                                        4
    

    Accordingly, the administrative law judge’s Decision and Order Denying Benefits is affirmed.

    SO ORDERED.

                                    JUDITH S. BOGGS, Chief
                                    Administrative Appeals Judge
    
                                    DANIEL T. GRESH
                                    Administrative Appeals Judge
    
                                    MELISSA LIN JONES
                                    Administrative Appeals Judge