RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 129
April 1997

James Guill
Associate Chief Judge for Longshore

Thomas M. Burke
Associate Chief Judge for Black Lung

    Circuit courts of appeal

   In Lovilia Coal Co. v. Harvey , ___ F.3d ___, Case No. 95-4122 (8th Cir. Mar. 21, 1997), the court held that pneumoconiosis is a progressive and irreversible disease such that it may develop in a miner after he has ceased working in the mines. The Eighth Circuit then addressed the "material change in conditions" standard to be applied to subsequent claims under 20 C.F.R. § 725.309 and held that it would apply the "one-element standard" adopted by the Third, Fourth, and Sixth Circuits. Specifically, the judge must consider "whether the weight of the new evidence of record . . . ., submitted by all the parties, establishes at least one of the elements of entitlement previously adjudicated against the miner." The court further noted that " the element must be one capable of change,'" i.e. the existence of pneumoconiosis or total disability. In this vein, the court also held the following:

[T]he Director explains that if a miner was found not to have pneumoconiosis at the time of an earlier denial, and he thereafter establishes that he has the disease, in the absence of evidence showing the denial was a mistake, an inference of material change' is not only permitted but compelled.' We agree.

[ III(F)(2), "material change in conditions" under § 725.309 ]

   In Lane v. Union Carbide Corp. , ___ F.3d ___, Case No. 95-3131 (4th Cir. Jan. 24, 1997), the court held that it was proper to "reject a medical opinion (which is) based on an invalid study." Moreover, the court determined that a physician's opinion was not "hostile-to-the-Act" where he concluded that simple pneumoconiosis would "not be expected" to cause a pulmonary impairment. In so holding, the court concluded that this opinion was based upon the specific facts of the case unlike the opinion at issue in Thorn v. Itmann Coal Co. , 3 F.3d 713 (4th Cir. 1995), where the doctor stated that "simple pneumoconiosis" does not cause total disability "as a rule."

[ IV(D)(4)(d), hostile-to-the-Act ; opinion based upon invalid study ]

   In Cal-Glo Coal Co. v. Yeager , ___ F.3d ___, Case No. 95-4038 (6th Cir. Jan. 14, 1997), the court reiterated that the administrative law judge must reopen the record to permit the introduction of evidence where there is a change in legal standards. Specifically, the court held that "when an employer rebuts the interim presumption under the pre- York standard applicable to § 727.203(b)(2), but not under the post- York standard, the BRB commits a manifest injustice if it refuses to allow the employer to present new evidence to the ALJ that the employer believes will establish rebuttal either under the post- York standards applicable to § 727.203(b)(2) or another regulatory subsection ." (emphasis added).

[ IV(a)(4), reopening the record/change in legal standard ]