<DOC>
[DOCID: f:wv9981.wais]

 
CONSOLIDATION COAL COMPANY
January 19, 2000
WEVA 99-81-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        January 19, 2000

MARY JOHNSON,                   : DISCRIMINATION PROCEEDING
               Complainant      :
                  v.            : Docket No.  WEVA 99-81-D
                                : MORG CD 99-02
CONSOLIDATION COAL COMPANY,     :
               Respondent       :
                                : Loveridge No. 22 Mine
                                : Mine ID No. 46-01433

                            DECISION

Appearances: Katherine L. Dooley, Esq., The Dooley Law Firm, 
             Charleston, West Virginia, on behalf of 
             Complainant;
             Elizabeth S. Chamberlin, Esq., Consol, Inc.,
             Pittsburgh, Pennsylvania, on behalf of Respondent.

Before: Judge Melick

     Hearings under Section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 801 et seq., the "Act,"  
commenced  in  this  case on December 21, 1999, in Fairmont, 
West Virginia. Those proceedings and the bench decision that 
followed are set forth below with only non-substantive changes:

          Judge Melick:  We've  had  an  extensive pre-trial
     conference this morning, and as I understand  from this
     conference  the  Complaint  in  this  case  is that the
     Consolidation  Coal  Company delayed, at least  several
     times, accepting a Workers' Compensation claim from the
     Complainant for injuries  she  sustained  while passing
     through   a  man-door  in  the  subject  mine,  thereby
     delaying her  Workers'  Compensation payments.  In this
     regard the Complainant seeks as remedy, interest on the
     late Workers' Compensation benefits she received.  Now,
     is that a correct statement of the Complaint?

          Attorney Dooley:  Yes, Your Honor.

          Judge Melick:  All right.   I  understand  then at
     this time you have a motion, Ms. Chamberlin?

          Attorney    Chamberlin:     Yes,    Your    Honor.
     Consolidation   Coal   Company  moves  to  dismiss  the
     complaint for failure to  state  a claim under the Mine
     Act.
          Judge  Melick:    As  I  said  in   the  pre-trial
     conference,  that  Complaint  does not come within  the
     purview of section 105(c)(1) of  the  Mine  Act.[1]   A
     remedy may exist with the Workers' Compensation laws of
     West  Virginia but it's not the purpose of the Mine Act
     to  provide  relief  under  these  circumstances.   The
     filing  of  a  Workers'  Compensation  claim  is not as
     presented  here, in itself, a protected activity  under
     the Mine Act  and  without any other claim of protected
     activity, the Complainant  cannot  prevail in this case
     under section 105(c).  As I say, if there is any remedy
     for delaying Workers' Compensation benefits  under  the
     present  circumstances  it  may  be under West Virginia
     Workers'  Compensation  law.    These  proceedings  are
     therefore dismissed.

                              ORDER

     The dismissal of  these  proceedings  is hereby confirmed 
in accordance with Commission Rule 69(a), 29 C.F.R. � 2700.69(a).


                               Gary Melick
                               Administrative Law Judge


Distribution:

Katherine  L. Dooley, Esq., The Dooley Law Firm, P.O. Box  11270,
815 Quarrier St., Suite 311, Charleston, WV 25339-1270 (Certified
Mail)

Elizabeth S.  Chamberlin,  Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

\mca


**FOOTNOTES**

     [1]: Section 105(c)(1) of the Act provides as follows:

          No  person  shall  discharge   or  in  any  manner
     discriminate against or cause to be discharged or cause
     discrimination against or otherwise interfere  with the
     exercise   of   the  statutory  rights  of  any  miner,
     representative of miners or applicant for employment in
     any coal or other mine subject to this Act because such
     miner,  representative   of  miners  or  applicant  for
     employment  has  filed or made  a  complaint  under  or
     related to this Act,  including  a  complaint notifying
     the   operator   or  the  operator's  agent,   or   the
     representative of  the miners at the coal or other mine
     of an alleged danger or safety or health violation in a
     coal   or   other  mine,   or   because   such   miner,
     representative of miners or applicant for employment is
     the  subject  of   medical  evaluations  and  potential
     transfer under a standard published pursuant to section
     101 or because such  miner, representative of miners or
     applicant for employment has instituted or caused to be
     instituted any proceeding  under or related to this Act
     or has testified or is about  to  testify  in any  such
     proceeding,   or   because  of  the  exercise  by  such
     miner, representative   of   miners  or  applicant  for
     employment  on behalf  of  himself  or  others  of  any
     statutory right afforded by the Act.