ONTHLY DIGEST # 146
Black Lung Benefits Act
February - March 2000
John M. Vittone
Chief Judge
Thomas M. Burke Associate Chief Judge
II. Black Lung Benefits Act
A. Circuit Courts of Appeal
In Island Creek Coal Co. v. Holdman , 202 F.3d 873 (6th Cir. 2000), the circuit court discussed whether it had jurisdiction to consider the merits of an appeal by the Employer. The Board failed to serve its October of 1995 decision upon Employer's counsel by certified mail, and the address used by the Board was incorrect. In August of 1996, Employer's counsel inquired as to the status of the appeal and the Board sent a copy of the decision to him by facsimile. In the decision, the Board stated in a footnote that Employer could file a petition for modification. In September of 1996, Employer filed a petition for modification but was informed by a claims examiner with the district director's office that the Board had advised him that Employer should have filed an appeal with the Board. In light of this confusion, Employer filed a motion for reconsideration with the Board which was promptly denied on August 21, 1997. Employer again requested that the Board review its October 1995 and August 1997 orders at which point the Director filed a motion to dismiss for lack of jurisdiction. Specifically, the Director argued that the time for filing an appeal began to run when Employer received a copy of the Board's decision by facsimile in August of 1996. The circuit court held that the 30-day period for requesting reconsideration before the Board did not commence when Employer received actual notice of the decision by facsimile; rather, notice was accomplished several months later when the district director mailed Employer a copy of the decision with a letter stating that the mailing represented Employer's official notice of the Board's decision.
The circuit court then dismissed Island Creek Coal Company as the responsible operator on grounds that OWCP was responsible for years of delay and losing a significant part of the record when it was referred to the administrative law judge for a decision. Specifically, the court noted that "[s]ubstantial evidence the orders of the Board from 1985-1993, ALJ Gilday's opinion" were missing such that the potential operator's due process rights were violated and it would "suffer prejudice were we to affirm its designation as a 'responsible operator.'" The court reasoned that "[t]his case places Island Creek in the difficult position of rebutting OWCP by proving the contents of twenty-year-old documents lost by OWCP." In a footnote, the court stated that the "Federal Respondent bears the blame for the past fourteen years of litigation in this matter" as a "record entrusted by law to OWCP has vanished." The court added that "[i]t appears that the Director and his staff have flirted with incompetence, although we do not have a record establishing that they acted in bad faith."
Finally, the court held that the administrative law judge properly discredited the testimony of Employer's physician who was equivocal with regard to the etiology of the miner's respiratory impairment. The court agreed that a physician, who concluded that simple pneumoconiosis "probably" would not disrupt a miner's pulmonary function, was equivocal and insufficient to "rule out" causal nexus created by the interim presumption as required by 20 C.F.R. § 727.203(b)(3).
[ dismissal of operator on due process grounds; equivocal medical opinion discredited ]
B.Benefits Review Board
In Sullenberger v. Director, OWCP , ___ B.L.R. ___, BRB No. 99- 0449 BLA (Mar. 8, 2000), Claimant, the adult disabled child of a deceased miner, was awarded benefits by the district director. He subsequently informed the district director of his marriage to another disabled individual and the payment of black lung benefits were suspended by the district director. Six years after the suspension of his benefits, Claimant requested, in writing, a reinstatement of benefits. The district director denied the request as an untimely petition for modification under 20 C.F.R. § 725.310 because Claimant's letter was received more than one year after the suspension of the benefits. A hearing was requested and the administrative law judge concluded that, by unilaterally suspending Claimant's benefits, the district director violated the hearing procedure requirements at 20 C.F.R. § 725.532(a). As a result, the administrative law judge considered the request for reinstatement de novo , and not as a petition for modification. The Board agreed with the administrative law judge's ruling in this regard.
After a hearing, the administrative law judge determined that benefits were properly suspended pursuant to 30 U.S.C. § 922(a)(3) because Claimant was married. Claimant argued, however, that because his wife was also disabled and he continues to rely on his parents for financial support, his benefits should be reinstated. The Board disagreed. It reasoned that the Act's language "contains no exceptions and provides for no such inquiry; the test is simply whether or not a claimant is married." The Board further rejected Claimant's argument that § 922(a)(3) "creates a suspect classification and violates claimant's right to freely exercise his religion" as the statutory provision is rationally based and generally applicable.
[ surviving adult disabled child ]
In Adler v. Peabody Coal Co. , ___ B.L.R. ___, BRB No. 98-1513 BLA (Feb. 4, 2000), the Board reiterated that a modification proceeding "vests a deputy commissioner with broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted . . . and Congress intended that this discretion be exercised whenever desirable in order to render justice under the Act." Claimant requested benefits as an augmentee of her mother who was receiving survivor's benefits as well as in her own right as the disabled adult child survivor of the miner pursuant to 20 C.F.R. § 725.227. The Board held that a prior administrative law judge's finding of no dependency was dicta because he ultimately denied benefits on the merits and, as a result, collateral estoppel was inapplicable.
In determining whether Claimant was disabled, the Board noted that her eligibility for, and receipt of, Social Security disability benefits was of record and that the Social Security definition of "disability" at 20 C.F.R. Part 404, Subpart P, Appendix 1 is incorporated by the black lung regulations at 20 C.F.R. §§ 725.209(a)(2)(ii) and 725.221 to determine eligibility for benefits under the Act. Upon review of the record, the Board determined that the administrative law judge properly credited Claimant's treating physician, who "observed claimant during examinations performed over a more than twenty-five year period," over Employer's examining physician.
Citing to Kidda v. Director, OWCP , 7 B.L.R. 1-202 (1984), aff'd. , 769 F.2d 165 (3d Cir. 1985), cert. denied , 475 U.S. 1096 (1986), Employer argued that Claimant's marriage "forever terminated her dependency status" for purposes of augmented and survivor's benefits. The Board disagreed and held that the Act does not preclude entitlement of a disabled child "who is 'unmarried' by reason of divorce." It found that, because Claimant was divorced prior to the filing of the miner's claim, the administrative law judge properly found that she was "unmarried" from the dates of the miner's and widow's entitlement to benefits and Claimant's entitlement to benefits as a survivor.
Finally, Employer argued that due process bars the award of retroactive benefits. Specifically, from 1981 to 1996, Employer maintained that it reasonably relied on a prior administrative law judge's finding in 1988 that Claimant did not qualify as a dependent. Employer asserted that it did not develop evidence between 1988 and 1996 "and thus could not present a meaningful defense thereafter regarding claimant's condition." Citing to Lane Hollow Coal Co. v. Director, OWCP [Lockhart] , 137 F.3d 799 (4th Cir. 1998) and Venicassa v. Consolidation Coal Co. , 137 F.3d 197 (3d Cir. 1998), Employer argued that it was irreparably prejudiced and should be dismissed as the responsible operator with liability transferred to the Black Lung Disability Trust Fund (Trust Fund). The Board found Employer's arguments to be without merit as Employer had been "timely notified of its potential liability for benefits in the miner's and widow's claims, which listed claimant as a dependent, disabled adult child . . . and was again timely notified when claimant filed her application for survivor's benefits . . .." The Board further noted that Employer was afforded notice and an opportunity to be heard before the administrative law judge, at which time Employer "fully presented its case . . .." As a result, the Board denied Employer's request that liability be transferred to the Trust Fund.
[ surviving adult disabled child ]