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Wensel v. Director

submitted: August 1, 1989.

SAMUEL E. WENSEL, PETITIONER
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT



On Petition for Review of a Decision of the Benefits Review Board, BRB Case No. 87-1165 BLA.

Sloviter, Hutchinson and Nygaard, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge

Samuel E. Wensel (Wensel), pro se, petitions for review of an order of the Department of Labor's Benefits Review Board (Board). The Board affirmed the decision of an administrative law judge (ALJ), who denied Wensel's claim for benefits under the Black Lung Benefits Act, 30 U.S.C.A. §§ 901-945 (West 1986).

Both parties state that the Board erred in affirming an erroneous decision by the ALJ, but they offer different reasons. Wensel states that the ALJ erred when he concluded that Wensel was not entitled to black lung benefits. The Director, Office of Workers' Compensation Program (Director), argues that we should remand the case because the ALJ failed to find facts as required by the Administrative Procedure Act (APA), 5 U.S.C.A. § 557 (c)(3)(A) (West 1977)*fn1 We agree with the Director that a remand is necessary. Therefore, we will vacate the decision of the Board and order it to remand this matter to the ALJ with directions.

I.

Wensel filed his claim for black lung benefits on April 1, 1982. He claims that he suffers from pneumoconiosis, the medical term for the affliction commonly known as black lung. Black lung is an occupational disease peculiar to the coal mining industry. It is caused by the inhalation of coal dust in the course of coal mine employment. See 20 C.F.R. § 718.201 (1988).

Wensel has argued throughout his battle for benefits that he worked about eighteen years as a coal miner. The ALJ found from Wensel's social security records that he worked only twelve and three-quarter years in the mines. The Board affirmed this finding. Wensel says the ALJ incorrectly failed to credit him with five to six years of work with W.P. Stahlman Coal Co. (Stahlman) of Corsica, Pennsylvania during the 1950's simply because there was no evidence of Wensel's work for Stahlman in Wensel's social security records.

The ALJ also determined that the medical evidence in the record failed to establish pneumoconiosis. The medical evidence consisted of seven x-ray readings, three pulmonary function tests, five blood gas studies and reports from three physicians. The ALJ determined that the great numerical weight of "objective" tests and physicians' opinions were negative for pneumoconiosis, even though one x-ray reading was positive for pneumoconiosis, the blood gas and ventilatory studies yielded values indicative of respiratory impairment and one physician who examined Wensel found that he suffered from black lung. The Board affirmed the ALJ's determination.

II.

We have jurisdiction pursuant to 30 U.S.C.A. § 932(a) (West 1986), which incorporates the review procedures of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.A. § 921(c) (West 1986), in pneumoconiosis cases involving coal miners. The ALJ's findings of fact are conclusive on the Board if supported by substantial evidence. See Marx v. Director, OWCP, 870 F.2d 114, 118 (3d Cir. 1989). "We review the Board's decision to determine whether it committed an error of law and whether it adhered to its scope of review. In performing the latter function, 'we must independently review the record "and decide whether the ALJ's findings are supported by substantial evidence."'" Id. (citation omitted) (quoting Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986) (quoting Walker v. Universal Terminal & Stevedoring Corp., 645 F.2d 170, 172 (3d Cir. 1981) (citation omitted))).

III.

The Director argues that this matter should be remanded to the ALJ since "[the] ALJ's decision violates the Administrative Procedure Act because it contains neither an accurate discussion of all of the relevant evidence nor an explanation of the findings made by the ALJ. . . ." Brief for Respondent at 7. The Director points us to 5 U.S.C.A. § 557(c)(3)(A), which states that "[all] decisions . . . shall include a statement of -- (A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record." We have held that an ALJ working for the Department of Labor must ...


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