A MINER'S CLAIM FOR BENEFITS UNDER THE BLACK LUNG BENEFITS ACT

A MINER'S CLAIM FOR BENEFITS UNDER THE BLACK LUNG BENEFITS ACT

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In the Matter of: 

DARRYL L. RUTROUGH, 

                              Claimant, 

v. 

OMEGA MINING, INC/ 

NATIONAL UNION FIRE/CHARTIS, 

                                  Employer/Carrier, 

and 

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, 

                                     Party-in-Interest. 

Case No.: 2012-BLA-05710

Procedural History 

Claimant filed his claim for benefits on November 2, 2010. (Director’s Exhibit (“DX”) 2). The claim was denied by the district director on February 12, 2012, because, although the evidence established the presence of pneumoconiosis which arose out of Claimant’s coal mine employment, the evidence failed to establish that Claimant was totally disabled due to pneumoconiosis. (DX 32). On March 5, 2012, Claimant requested a hearing before an administrative law judge. On April 16, 2012, the case was referred to the Office of Administrative Law Judges by the Director, Office of Workers’ Compensation Programs (OWCP) for a formal hearing. (DX 35). On January 14, 2015, I held a hearing in Abingdon, Virginia, at which Claimant was represented by a lay representative and employer and insurer were represented by counsel. The Solicitor entered a written appearance for the Director, Office of Workers’ Compensation Programs (“OWCP”), but did not attend the hearing. The parties were afforded the full opportunity to present evidence and argument. Claimant’s exhibits (“CX”) 1-9, Director’s exhibits (“DX”) 1-37, and Employer’s exhibits (“EX”) 1-8 were admitted into the record (Hearing Transcript (“TR”) 6, 9). In addition, Employer was allowed time post-hearing to submit a rebuttal x-ray reading, an affirmative pulmonary function study and updated reports by Drs. Rosenberg and Dahhan (TR 9). Post-hearing evidence consists of a pulmonary function study by Dr. David M. Rosenberg performed on February 3, 2015 (EX 4), an updated report by Dr. Rosenberg dated April 14, 2015, (EX 6) and an updated medical report by Dr. A. Dahhan dated March 20, 2015 (EX 7). 

Issues 

At the hearing, Employer stipulated that Claimant worked as a miner for 22.38 years. At the hearing, Employer stated the issues remaining included: 1) Whether Claimant has pneumoconiosis as defined by the Act and the Regulations; 2) Whether Claimant’s pneumoconiosis arose out of his coal mine employment; 3) Whether Claimant is totally disabled; and 4) Whether Claimant’s disability is due to pneumoconiosis (TR 10). In the closing brief, however, Employer conceded that the evidence is sufficient to establish that Claimant has pneumoconiosis, that his pneumoconiosis arose out of coal mine employment, that Claimant is totally disabled and that his disability is due to pneumoconiosis. Employer contends that the only remaining issue is the onset date when benefits may commence.

 

Conclusions

In conclusion, Claimant has established that he has pneumoconiosis that arose out of his coal mine employment, as defined by the Act and Regulations. Claimant has established that he is totally disabled due to pneumoconiosis. The evidence establishes an onset date of March, 2013.