RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 128
February - March 1997

James Guill
Associate Chief Judge for Longshore

Thomas M. Burke
Acting Associate Chief Judge for Black Lung

    A. Circuit courts of appeal

    In Underwood v. Elkay ining, Inc. , ___ F.3d ___, Case No. 95-2717 (4th Cir. Feb. 4, 1997), a copy of which is attached, Claimant argued that "the ALJ violated the Administrative Procedure Act, 5 U.S.C. § 556(d), by admitting cumulative or repetitive evidence submitted by Elkay ining." Initially, the court noted that "[b]ecause the ALJ is presumably competent to disregard that evidence which should be excluded or to discount that evidence which has lesser probative value, it makes little sense, as a practical matter, for a judge in that position to apply strict exclusionary evidentiary rules."

    The court concluded, however, that "the APA grants ALJ's broad discretion to exclude excessive evidence which lacks significant probative value . . .." In this vein, the court noted that, in a case involving voluminous evidence, "[t]here is a point of diminishing returns and a point at which additional evidence provides almost no value." The court then emphasized the importance of considering the "quality" of the evidence when weighing it. The court also stated the following:

To the extent that ALJs determine that a particular expert's opinion is not, in fact, independently based on the facts of a particular claim, but is instead influenced more by the identity of his or her employer, ALJs have clear discretion to disregard such an expert's opinion as being of exceedingly low probative value.

[ IV(4)(a), admission of evidence/cumulative, repetitious evidence ]

    B. Benefits Review Board

    In Allen v. Island Creek Coal Co. , ___ B.L.R. ___, BRB No. 89-1856 BLA (Aug. 27, 1996), aff'g. on recon. , 15 B.L.R. 1-32 (1991), Employer sought reconsideration on grounds that it should not be required to pay medical bills related to treatment of chronic bronchitis and chronic obstructive pulmonary disease, as these "conditions do not fall within the regulatory definition of pneumoconiosis." The Board held, to the contrary, that insofar as Claimant is entitled to a presumption that his chronic bronchitis and COPD are substantially related to, or aggravated by, the presence of pneumoconiosis, Employer is liable for the medical costs associated with Claimant's treatment. The "presumption" is derived from the Fourth Circuit's decision in Doris Coal Co. v. Director, OWCP [Stiltner] , 938 F.2d 492 (4th Cir. 1991) wherein the court held that because "most pulmonary disorders are going to be related or at least aggravated by the presence of pneumoconiosis, when a miner receives treatment for a pulmonary disorder, a presumption arises that the disorder was caused or at least aggravated by the miner's pneumoconiosis, making the employer liable for the medical costs." See also Seals v. Glen Coal Co. , 19 B.L.R. 1-80 (1995)(en banc).

[ III(B), medical treatment dispute, COPD and chronic bronchitis covered ]

    In Nelson v. Director, OWCP , ___ B.L.R. ___, BRB No. 96-0744 BLA (Jan. 29, 1997), Claimant argued that a 1993 overpayment claim filed by the Department of Labor (DOL) was untimely pursuant to the six year statute of limitations contained at 28 U.S.C. § 2415(a) where the DOL had "enough information in 1979 to seek recovery." The Board held, however, that the DOL's action to recover an overpayment "is not an action for money damages within the meaning of § 2415(a)" such that the claim was not time-barred. The Board then reiterated, however, that "prior to the recovery of an overpayment, a (claimant) has a right to an oral hearing on the issues of fault and whether recovery would defeat the purpose of the Act or be against equity and good conscience." Because no hearing had been held with regard to these issues, the claim was remanded.

[ III(C)(2)(e), overpayment/waiver of recovery/entitlement to a hearing ]