USDOL
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RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 140
January - February 1999

James Guill
Associate Chief Judge for Longshore

Thomas M. Burke
Associate Chief Judge for Black Lung

    A. Circuit Courts of Appeal

   In Peabody Coal Co. v. Director, OWCP [Durbin] , ___ F.3d ___, Case No. 97-3721 (7th Cir. 1999), the court held that an ALJ improperly excluded an autopsy report of Dr. Naeye on grounds that no good cause was established for its late submission on remand. Moreover, the court concluded that the ALJ improperly discredited a reviewing physician's report which was based, in part, upon the excluded autopsy report. In the ALJ's decision on remand, he stated the following:

Dr. Naeye's review of the autopsy was submitted on April 1, 1994, well after the deadline for submission of evidence. No good cause was shown for the lateness of the submission only a confession of inadvertence. Inadvertence may serve as a reason for failure to meet a deadline; it will not do as an excuse. Dr. Naeye's report is rejected. That being the case, to the extent that Dr. Fino's appraisal of the extent of Claimant's pneumoconiosis is based on Dr. Naeye's report, that appraisal is flawed.

The Seventh Circuit held that a medical expert may base his or her opinion upon evidence which has not been made part of the record in administrative proceedings which are not confined by the federal rules of evidence. The court reasoned that "[t]he reason these rules are not applicable to agencies is that being staffed by specialists the agencies are assumed to be less in need of evidentiary blinders than lay jurors or even professional, though usually unspecialized, judges." It stated that "Naeye's report may have been put into evidence late, but there is no suggestion that it was too late to enable the claimant to prepare a rebuttal or that Fino was irresponsible in relying on the report in formulating his own opinion about the causality of (the miner's) disability." As a result, the Seventh Circuit vacated the ALJ's award of benefits and remanded the case to the ALJ for consideration of Dr. Fino's opinion.

[ consideration of late evidence ]

   In Harman Mining Co. v. Layne , 21 B.L.R. 2-507, Case No. 97- 1385 (4th Cir. 1998) (unpub.) 1 , the court held that it was not an abuse of discretion for the ALJ to refuse to reopen the record on remand for additional evidence under subsections 727.203(b)(2) and (b)(3) 25 years after the filing of the claim. Employer argued that the court's decision in Bethlehem Mines Corp. v. Massey , 736 F.2d 120 (4th Cir. 1984), which was issued after the record closed changed the legal standard for subsection (b)(3) rebuttal such that Employer was entitled to present new evidence on the issue. The Fourth Circuit held, to the contrary, that it did not change the law in Massey ; rather, it "simply reaffirmed existing law" that Employer must present evidence sufficient to "rule-out" any causal nexus between the miner's coal mine employment and his total disability. In so holding, the court cited to its decisions in Hampton v. Dept. of Labor , 678 F.2d 506 (4th Cir. 1982) (per curiam) and Rose v. Clinchfield Coal Co. , 614 f.2d 936 (4th Cir. 1980) which were issued prior to the time the record closed in Layne .

   With regard to subsection (b)(2) rebuttal, the court held that Employer was on notice of the standard, that it must demonstrate that the miner was not disabled for any reason, from the plain language of the regulation which requires that Employer establish "that the individual is able to do his usual coal mine work or comparable and gainful work." See 20 C.F.R. § 727.203(b)(2). The court reasoned that Board decisions, which had held that (b)(2) rebuttal requires that Employer demonstrate that the miner is not totally disabled for any pulmonary or respiratory reason, were inconsistent with the language of the regulation and the fact that Employer "chose to restrict its evidence to the lesser standard . . . does not allow it to avoid the fact that it was notice of the higher standard." As a result, the court concluded that the ALJ properly refused to reopen the record on remand for additional evidence related to subsection (b)(2).

   Finally, the court also addressed the applicability of the transfer of liability provisions. It noted that the miner filed a Part B claim on June 6, 1973. He then filed a Part C claim on May 12, 1974. In June of 1975, the SSA denied the miner's Part B claim. On July 23, 1976, the DOL approved the Part C claim. The DOL argued that the transfer of liability provisions were inapplicable because both of the claims at issue were filed prior to March 1, 1978. The court agreed that a reasonable interpretation of the transfer provisions was that the Part C claim must be filed after March 1, 1978. The court further noted that the "neither Layne's Part B claim nor his Part C claim satisfies the statutory requirements for transfer" because "[t]he Part C claim was not denied prior to March 1, 1978; the Part B claim was not approved under Section 945."

[Footnote]

1 The court's decision contains an introductory statement regarding the limited circumstances under which the unpublished decision may be used.

[ reopening the record on remand; transfer of liability ]

    B. Benefits Review Board

   In Shaffer v. Director, OWCP , ___ B.L.R. ___, BRB No. 95-2083 BLA (Nov. 30, 1998) ( en banc on recon. ), the Board agreed with the Director's position that, "while an employer may be required to pay an enhanced attorney's fee due to delay, such an enhancement is not appropriate where the Trust Fund is liable for the fee because the Act does not specifically waive the government's sovereign immunity from an award of interest. The Board likened enhancement of an attorney's fee for delay as imposing interest upon the Trust Fund which is not permitted under the Act or implementing regulations.

[ enhancement of attorney fee prohibited in Trust Fund cases ]

   In Jones v. Badger Coal Co. , ___ B.L.R. ___, BRB No. 97-1393 BLA (Nov. 30, 1998) ( en banc ), the first issue presented to the Board was whether Claimant's collateral estoppel argument was waived for her failure to file a cross-appeal as provided at 20 C.F.R. § 802.201(a)(2). It held that the argument was not waived. The Board reasoned that, because Claimant was satisfied with the administrative law judge's decision, "she was not required to cross-appeal in order to made arguments which were not in support of (the ALJ's) reasoning but which supported the result reached by the administrative law judge, i.e. an award of benefits based on findings of the existence of pneumoconiosis arising out of coal mine employment and death due to pneumoconiosis."

   The Board further held that the administrative law judge properly weighed the medical evidence under § 718.202 of the regulations. Specifically, the ALJ separately evaluated the x-ray evidence at § 718.202(a)(1) to find no evidence of pneumoconiosis but he concluded that the medical opinion evidence at § 718.202(a)(4) did support a finding of the disease. Employer had argued that, under § 718.202(a), "all relevant evidence must be weighed together to determine whether claimant suffers from the disease," and it cited to the Third Circuit's holding in this regard in Penn Allegheny Coal Co. v. Williams , 114 F.3d 22 (3d Cir. 1997). The Board countered to note that Jones did not arise within the Third Circuit such that the Williams decision was not controlling. oreover, it stated that the circuit court failed to distinguish between clinical and legal pneumoconiosis. In this vein, the Board reasoned that legal pneumoconiosis "is a broader category which is not dependent upon a determination of clinical pneumoconiosis, and the absence of clinical pneumoconiosis does not necessarily influence a physician's diagnosis of legal pneumoconiosis."

   The Board then held that, it was within the administrative law judge's discretion as the trier-of-fact, to accord greater weight to the miner's treating physician of 14 years and another physician who had treated the miner during his multiple hospitalizations over the opinions of Drs. Fino, Zaldivar, and Morgan who never examined the miner and Dr. Renn, who examined him only once.

   With regard to the challenges to the administrative law judge's fee award, the Board held that it was within his discretion to find "that all of the hours requested by counsel for reviewing the file, traveling, organizing exhibits and preparing briefs were necessary and reasonable." The Board further held that it was proper for the ALJ to award fees at counsel's "customary hourly rate of $200 for black lung cases." In so holding, the Board rejected Employer's argument that "an hourly rate of $175 would be appropriate and more consistent with the rate obtained by the general legal community in the area of law" as Employer's argument was deemed "insufficient to meet (its) burden of proving the rate awarded was excessive or that the administrative law judge abused his discretion in this regard."

[ establishing pneumoconiosis under 20 C.F.R. § 718.202(a) ]

   By published decision in Stacy v. Cheyenne Coal Co. , ___ B.L.R. ___, BRB No. 98-0670 BLA (Feb. 10, 1999), the Board upheld a finding that Claimant failed to file a timely petition for modification. Although the record contained a November 1996 letter from Claimant requesting that the district director respond to his December 1994 modification petition, the administrative law judge concluded that "the DOL had no record of the document until a copy" was attached to the November 1996 correspondence and that, without any corroboration that the petition was received in December 1994, the administrative law judge properly found that it was untimely. However, the Board further held that the administrative law judge erred in adjudicating the claim under 20 C.F.R. § 725.309. In so holding, the Board reasoned that Claimant's letter to the district director did not satisfy the requirements of 20 C.F.R. §§ 725.305(b) and (d) which require that subsequent claims be filed on a specific form and such claims are not "perfected" until the specified form is filed. Because Claimant's request was not filed on the "prescribed form," the Board concluded that "there was no claim before the administrative law judge to adjudicate."

[ petition for modification; multiple claims ]

   The unpublished decision of Collins v. Director, OWCP , BRB No. 98-0371 BLA (Nov. 27, 1998), is also reviewed for this digest because of the conflicting holdings of the Board in the area of setting repayment schedules for overpayments. In this case, the Board stated the following:

The administrative law judge has simply accepted claimant's assertion of an ability to repay $50.00 per month; but, especially in light of claimant's $450.00 monthly surplus, the administrative law judge has failed to indicate why the $50.00 per month repayment amount is any more viable than the $100.00 figure arrived at by the district director or any other figure. Inasmuch as the administrative law judge has failed to explain how he has arrived at the $50.00 figure, we hold that his determination violates the Administrative Procedure Act . . ..

. . .

Accordingly, on remand the administrative law judge must fully explain his basis for arriving at the $50.00 figure or, in the alternative, must craft another repayment plan.

This appears to run contrary to the Board's holding in Keiffer v. Director, OWCP , 18 B.L.R. 1-35 (1993) wherein it concluded that the purpose of the formal hearing is to establish the existence of a debt, "not how it will be paid." Indeed, the Board stated that "[t]he administrative law judge's inquiry is merely whether claimant is in a financial position to assume repayment of the debt created by the overpayment." It is noteworthy that in another unpublished decision, Jennings v. Director, OWCP , BRB No. 97-1537 BLA (May 27, 1998), the Board cited to its Keiffer decision and concluded that the administrative law judge did not have authority to determine a repayment schedule; rather, s/he is limited to determining the amount of the overpayment and whether the overpayment should be partially or totally waived.

[ setting repayment schedule in overpayment cases ]