John Nataloni v. Director, Office of Workers' Compensation Programs (Board decision, February 9, 1993)

BRB final decision. The Benefits Review Board affirmed the denial of John Nataloni's request to modify his black lung benefits denial. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may seek Board reconsideration within 30 days under § 802.407.

Plain-English summary

John Nataloni sought to reopen a denied black lung claim under the modification rule. He argued that the judge had failed to discuss older medical evidence favoring him. The Board held that newly submitted evidence did not establish the missing elements of pneumoconiosis and total disability, so it showed no change in conditions. Although the judge should have considered the full record for a possible mistake of fact, Nataloni had identified no such mistake, making that omission harmless. The denial of modification was affirmed.

Decision snapshot

• Authority: Modification for changed conditions or mistake of fact under 20 C.F.R. § 725.310.
• Outcome: Denial of modification affirmed.
• Key point: Old evidence already considered in the initial claim did not establish a changed condition.

Full text (BRB public release)

[BLR cite: Nataloni v. Director, OWCP, 17 BLR 1-82 (1993)]

BRB No. 90-0595 BLA

JOHN NATALONI
)
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED: COMPENSATION PROGRAMS, UNITED ) STATES DEPARTMENT OF LABOR ) )
Respondent ) DECISION and ORDER

Appeal of the Decision and Order of Paul H. Teitler, Administrative Law Judge, United States Department of Labor.

Robert A. Mazzoni (Mazzoni & Mazzoni), Scranton, Pennsylvania, for claimant.

Patricia M. Nece (David S. Fortney, Deputy Solicitor of Labor; Donald S.
Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, the United States Department of Labor.

Before: BROWN and DOLDER, Administrative Appeals Judges, and LAWRENCE, Administrative Law Judge.*

PER CURIAM:

Claimant appeals the Decision and Order (89-BLA-0986) of Administrative

Law Judge Paul H. Teitler denying a request for modification 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). The administrative law judge found the evidence insufficient to establish a change in

*Sitting as a temporary Board member by designation pursuant to the Longshore

and Harbor Workers' Compensation Act as amended in 1984, 33 U.S.C. §921(b)(5)

(Supp. V 1987).

claimant's condition or a mistake in a determination of fact in the previous denial of

benefits.1 The administrative law judge therefore denied claimant's request for

modification pursuant to 20 C.F.R. §725.310. On appeal, claimant contends that

the administrative law judge failed to comply with Administrative Procedure Act

requirements because he failed to discuss certain medical evidence of record. See

5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 5 U.S.C. §554(c)(2), 33

U.S.C. §919(d) and U.S.C. §932(a). The Director, Office of Workers' Compensation

Programs (the Director), responds, seeking affirmance of the decision below.

The Board's scope of review is defined by statute. If the findings of fact and

conclusions of law of the administrative law judge 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 by 30

1
Claimant initially filed a claim on August 25, 1981. (Director's Exhibit 1). After a formal hearing, claimant was denied benefits, on September 18, 1985. (Director's Exhibit 20). The Board affirmed the denial of benefits on December 15, 1987. (Director's Exhibit 27). Claimant filed a second application on November 8, 1988 (Director's Exhibit 28), which was considered a request for modification pursuant to Section 725.310 since it was filed within a year of the denial by the Board. The request was denied by the deputy commissioner on December 22, 1988. (Director's Exhibit 30).

2
U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359

(1965).

Claimant contends that the administrative law judge erred in failing to discuss

medical evidence which supports his claim. Claimant specifically mentions x-ray

readings by Dr. McGuire which are positive for pneumoconiosis (Director's Exhibits

11, 12), a blood gas study with abnormal, albeit nonqualifying results (Director's

Exhibit 8), and a medical report by Dr. Patel (Director's Exhibit 6), all of which,

claimant states, are corroborated by his testimony. Although claimant correctly

contends that the administrative law judge did not discuss this evidence in his

decision, all of the evidence referred to by claimant was in the record prior to the

September 18, 1985 decision denying benefits and was considered by

Administrative Law Judge Robert M. Glennon. Since the administrative law judge

was evaluating a request for modification at 20 C.F.R. §725.310, he properly

considered whether claimant established a change in conditions or a mistake in fact.

See Kovac v. BCNR Mining Corporation, 14 BLR 1-156 (1990), modified on recon.,

16 BLR 1-71 (1992). In determining whether claimant has established a change in

conditions, the administrative law judge is obligated to perform an independent

assessment of the newly submitted evidence to determine if the weight of the new

evidence is sufficient to establish the element or elements of entitlement which

defeated entitlement in the prior decision. See Kovac, supra. In the case at bar,

3 claimant was not awarded benefits initially because the administrative law judge

determined that claimant failed to establish the existence of pneumoconiosis and

total disability pursuant to 20 C.F.R. §§718.202 and 718.204(c), and the Board, in

Nataloni v. Director, OWCP, BRB No. 85-2485 BLA (Dec. 15, 1987)(unpub.),

affirmed the administrative law judge's finding that claimant failed to establish total

disability. In finding that claimant failed to establish a change in conditions, the

administrative law judge properly found that the weight of the newly submitted

evidence was insufficient to establish either element of entitlement, since none of the

new evidence was favorable to claimant.2 See Decision and Order at 5. As none of

the evidence supports claimant's position, we affirm the administrative law judge's

finding that claimant failed to establish a change in conditions pursuant to Section

725.310 as rational and supported by substantial evidence.

2
The only new evidence, which was discussed by the administrative law judge, is two negative readings of an April 10, 1989 x-ray, a nonqualifying pulmonary function study, a nonqualifying arterial blood gas study, and a doctor's report diagnosing hypertension and osteoarthritis, but no pulmonary impairment. (Director's Exhibits 34, 35). There is also a reading by Dr. Greene (of the same x-ray) in the case file which has no exhibit number and was not discussed by the administrative law judge. However, it is negative for pneumoconiosis, and therefore could not support claimant's contentions.

4
Claimant may also be entitled to modification pursuant to Section 725.310 by

establishing a mistake in fact. Subsequent to the administrative law judge's Decision

and Order denying modification, the Board determined that, unlike a change in

condition, the administrative law judge is bound to consider the entirety of the

evidentiary record, and not merely the newly submitted evidence, in making a

determination of mistake in fact upon modification. See Kovac, supra. However,

since claimant bears the burden of proof to establish a mistake in fact, and the

record does not reveal that claimant has attempted to identify a mistake in fact at

any stage of the request for modification, we hold that the administrative law judge's

failure to consider the entirety of the evidentiary record on this issue constitutes

harmless error, see Larioni v. Director, OWCP, 6 BLR 1-1276 (1984), and thus we

affirm the administrative law judge's finding that claimant failed to establish a

mistake in fact as rational and supported by substantial evidence. Accordingly, since

we affirm the administrative law judge's finding that claimant failed to establish a

change in condition or mistake in fact, we further affirm the administrative law

judge's determination that claimant is not entitled to modification pursuant to Section

725.310, and thus, contrary to claimant's contention, the administrative law judge

was not bound to consider the entirety of the medical evidence in a review of the

merits of this claim. See Kovac, supra.
Accordingly, the administrative law judge's Decision and Order denying

claimant's request for modification is affirmed.

SO ORDERED.

JAMES F. BROWN
Administrative Appeals Judge

NANCY S. DOLDER
Administrative Appeals Judge

LEONARD N. LAWRENCE
Administrative Law Judge