RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 136
ay 1998 - June 1998

James Guill
Associate Chief Judge for Longshore

Thomas M. Burke
Associate Chief Judge for Black Lung

    A. Circuit Courts of Appeal

   In Cunningham v. Island Creek Coal Co. , ___ F.3d ___, Case No. 97-3506 (6th Cir. May 5, 1998), the court held that the ALJ, to whom a black lung claim was reassigned, erred in denying Claimant an oral hearing on modification. In support of its conclusion, the Sixth Circuit cited to the Act and regulations which state, inter alia , that a party is entitled to a hearing upon request and the district director must forward the file to the OALJ. It also cites to Lukman v. Director, Office of Workers' Compensation Programs , 896 F.2d 1248 (10th Cir. 1990), a case involving a subsequent claim under § 725.309, and to Arnold v. Peabody Coal Co. , 41 F.3d 1203 (7th Cir. 1994). It is noted that, although the Arnold decision involved a petition for modification, the court's holding was based upon the following:

Congress obviously intended that the weighing of conflicting evidence be done after a hearing on whether to award benefits . . .. When a full hearing has been held, the ALJ may then make an informed determination. At such a hearing, [the physicians] may testify and be questioned, and other evidence not involving rereadings (of x-rays) may be received.

   In addition, the court found that, because the original deciding ALJ was no longer with the agency, a modification case was properly reassigned to another ALJ after notice was provided to the parties. Claimant argued "that it was error to change the ALJ assigned to his case during the pendency of his proceeding." The court cited to 29 C.F.R. § 18.30 which authorizes the Chief ALJ to reassign a claim where the original deciding judge is no longer available. It then concluded that "[a]s no party objected to the reassignment after notice and because the proper procedures for reassignment were followed, we find no merit in Cunningham's argument."

[ III(G), right to a hearing on modification ; transfer of a claim ]

   In Glen Coal Co. v. Seals , ___ F.3d ___, Case No. 92-1887 BLA (6th Cir. June 24, 1998), a medical treatment dispute case, the court overruled the published Board decision in this case to hold that Claimant is not entitled to a rebuttable presumption that his pulmonary or respiratory medical treatment is related to his coal workers' pneumoconiosis. The Sixth Circuit acknowledged its departure from the Fourth Circuit's holding on the issue in Doris Coal Co. v. Director, OWCP , 938 F.2d 492 (4th Cir. 1991) (a miner who is found totally disabled due to pneumoconiosis is entitled to a rebuttable presumption that his pulmonary and respiratory medical treatment is related to this condition). The Sixth Circuit did not find that the Doris Coal presumption violated § 7 of the Administrative Procedure Act:

We hold that the Doris Coal presumption (does not violate § 7 because it) merely reallocates the burden of production, and does not affect the burden of proof. The effect of the Doris Coal presumption is to find that there where is a stage one determination that the claimant is totally disabled due to pneumoconiosis, then in stage two the claimant does not have to come forward with any additional evidence to provide that his medical bills are related to his pneumoconiosis; instead, the employer/carrier must come forward with evidence to prove that his medical bills are related to his pneumoconiosis.

. . .

The claimant still must satisfy the trier of fact that the bills are related, but the claimant is relieved of the requirement of producing additional evidence of this relationship.

The court concluded, however, that the rebuttable presumption created in Doris Coal is not consistent with the purpose of the Black Lung Benefits Act. Citing to the Supreme Court's decision in Director, OWCP v. Greenwich Collieries [Ondecko] , 512 U.S. 267 (1994), the circuit court found that the decision "suggest[ed]" that the Act "was intended to be applied with uniformity which could be destroyed if the door is suddenly opened to the creation of judicial presumptions." The court further noted that such a presumption may "open the door to fraud in the preparation of medical bills."

[ medical treatment dispute ]

   In R&H Steel Buildings, Inc. v. Director, OWCP , ___ F.3d ___, Case No. 97-3409 (7th Cir. June 16, 1998), Claimant worked for Employer in coal mine construction. One of the issues before the court was whether claimant was a "miner" within the definition of the Act during the time he worked in construction. In its analysis, the court stated the following:

At R&H, (Claimant) worked at a number of coal mine construction projects. The work involved surface projects and did not involve mining. The dispute in this case is over the exact periods of time during which he was exposed to coal dust while working on the projects, for as we have seen, in order to be classified a miner he had to be exposed to coal dust during one year of his employment.

On this basis, the court reviewed Claimant's testimony as well as that of Employer's officers to conclude that Claimant worked at several different mine sites during his employment with R&H. It found that Claimant was exposed to coal dust for twelve months while working for R&H and, therefore, he was a "miner" within the meaning of the Act and R&H, as the last operator to employ Claimant for one year, was the responsible operator.

   The court then addressed the standard for § 727.203(b)(3) rebuttal to state that "no matter how it's viewed, rebuttal under this section is an uphill battle." The court stated that "[t]he company is confronted with a person presumed to be disabled because of pneumoconiosis which is a chronic dust disease of the lungs arising from coal mine employment and it must show that the disability did not arise, even in part, from coal mine employment." The court held that x-ray evidence is insufficient as a matter of law to establish rebuttal under (b)(3) citing to "[o]ne study (which) has shown that 25 percent of people with pneumoconiosis had negative x-rays." The court then affirmed the ALJ's finding of no rebuttal on grounds that the physicians' opinions offered by Employer were equivocal and conclusory.

[ II(A)(4), construction worker as a "miner" ; IX(A)(2)(c), rebuttal under § 727.203(b)(3) ]

   In Midland Coal Co. v. Director, OWCP , ___ F.3d ___, Case No. 97-1166 (7th Cir. July 1, 1998), the court held that it did not have jurisdiction to decide an appeal of a black lung claim where Employer filed three motions to reconsider an award of benefits with the Benefits Review Board. In so holding, the court stated the following:

[A] motion for reconsideration filed within 30 days of a decision tolls the time to appeal to this court, and sec. 10(c) of the APA does not apply to the first motion for reconsideration. When the first motion is denied, the original, non-interlocutory order' stands, and the loser has 60 days to appeal to the United States Court of Appeals. But what about the second motion for reconsideration?

. . .

The filing of the second request to reconsider would merely toll the time to appeal the denial of the first request for reconsideration. But because motions for reconsideration are committed to agency discretion, we do not have jurisdiction over internal appeals of such motions.

. . .

On the final non-interlocutory decision on the merits is appealable to this court. Once 60 days expires after the original decision, or after the first denial of reconsideration, this court has no jurisdiction over an appeal.

The court also cited to Peabody Coal Co. v. Abner, 118 F.3d 1106, 1108 (6th Cir. 1997) where the Sixth Circuit arrived at the same conclusion.

[ multiple requests for reconsideration; tolling of appeal period ]

    B. Benefits Review Board

   In Osborne v. Clinchfield Coal Co. , ___ B.L.R. ___, BRB No. 96-1523 BLA (Apr. 30, 1998) ( en banc on recon. ), the Board held that the ALJ "acted within his discretion in treating the testimony of the miner's widow as evidence which can corroborate the medical reports . . . regarding the issue of whether the miner was suffering from a totally disabling respiratory impairment." Moreover, it found that the ALJ rationally construed the terms " respiratory' and pulmonary'" differently after noting that the physicians "did not use the terms interchangeably." The Board also held that it was proper for the ALJ to accord less weight to physicians' opinions which found that pneumoconiosis did not contribute to the miner's disability on grounds that the physicians did not diagnose pneumoconiosis.

[ respiratory and pulmonary concepts ]

   In Cochran v. Westmoreland Coal Co. , ___ B.L.R. ___, BRB No. 98-0309 BLA (June 11, 1998), the ALJ issued an order dismissing certain named operators and remanded "the case for a complete medical examination as he found the record void of a complete assessment based on a correct employment history." The Director requested reconsideration to state that, on remand, he should be able to further investigate the responsible operator issue and Westmoreland Coal should not be dismissed prior to that investigation. The ALJ denied the reconsideration request and the Director appealed his interlocutory orders. The Board initially noted that "[a]n order that leaves the question of entitlement on the merits unresolved does not constitute a final appealable order." It then set forth the factors for the "collateral order exception" as follows: (1) the order must conclusively determine the disputed issue; (2) the order must resolve an important issue separate from the merits of the action; and (3) the order must be effectively unreviewable on appeal from final judgment. Upon consideration of these factors, the Board concluded that the exception applied because the ALJ's orders "conclusively determined that Westmoreland was not a potentially responsible operator in this case and have undermined any further investigation concerning the potential liability of ICI." The Board noted that, if benefits are awarded, then the Director would be precluded from "proceeding against any putative responsible operator which had not been a participant in every stage of the prior adjudication."

[ interlocutory appeals ]

   By unpublished decision in Jennings v. Director, OWCP , BRB No. 97-1537 BLA (May 27, 1998), a copy of which is attached, the Board upheld an ALJ's finding that, because Claimant's monthly income exceeded his monthly expenses, "recovery of the overpayment would not deprive claimant of funds needed to meet ordinary and necessary living expenses." The Board further affirmed the ALJ's conclusion that Claimant was entitled to a partial waiver of the overpayment amount upon finding that Claimant had "changed his position for the worse and relinquished a valuable right by both paying . . . toward his daughter's college tuition and by paying . . . for house repairs." However, the Board then held that an ALJ does not have the authority to determine a repayment schedule in a case involving a claim for repayment of overpayment. Rather, the ALJ is limited to determining the amount of the overpayment and whether the overpayment should be partially or totally waived. The Board cited to its decision in Kieffer v. Director, OWCP 18 B.L.R. 1-35 (1993) and concluded that "[t]he purpose of the formal hearing is to establish the existence of debt, not how it will be repaid."

[ III(C)(2)(e), recovery of overpayment/repayment schedule ]

   In Young v. Director, OWCP , BRB No. 97-1411 BLA (June 24, 1998)(unpub.), the Board held, in a case arising in the Sixth Circuit involving a modification petition by a pro se claimant, that it was error for the ALJ to deny Claimant a hearing and to conclude that Claimant would proceed without counsel. Specifically, the Board stated the following:

Section 6(a) of the Administrative procedure Act . . . grants claimant the right to be represented at the hearing. (Citations omitted).

. . .

In order to conduct a full and fair hearing, the Board has held that the administrative law judge must inform a pro se claimant of his or her right to be represented by a representative of his choice without cost to him and inquire whether claimant desires to proceed without representation. (Citations omitted). Furthermore, Section 725.362(b) requires that the administrative law judge determine whether claimant has made a knowing and voluntary waiver of his or her right to presentation. The administrative law judge must then proceed to inform claimant of the issues in the case, allow claimant the opportunity to admit evidence and to object to the admission of the adversary's evidence, and allow claimant the opportunity to provide testimony concerning relevant issues. (Citations omitted).

The Board concluded that, because the ALJ denied the parties a hearing on modification, after determining that there were no issues involving witness credibility, he could not adequately determine whether Claimant intended to voluntarily proceed with her claim in pro se status. Moreover, the Board determined that, because the ALJ issued an order to show cause why a hearing was necessary, where the Director stated that it was not but Claimant failed to respond, the ALJ "improperly placed the burden on claimant to establish the necessity of a hearing. Citing to 20 C.F.R. §§ 725.450 and 725.461(a) and Cunningham v. Island Creek Coal Co. , ___ F.3d ___, Case No. 97-3506 (6th Cir. May 5, 1998), the Board concluded that there had not been "a valid waiver of claimant's right to a hearing on modification."

[ III(G), right to a hearing/representation modification ]

   In Shertzer v. McNally Pittsburgh Manufacturing Co. , BRB No. 97-1121 BLA (June 26, 1998) (unpub.), the Board held that the ALJ erred in admitting evidence submitted on modification where the evidence was in existence at the time the ALJ issued his original decision. Specifically, the Board concluded that certain Director's Exhibits should not have been admitted as evidence on modification because "this evidence was in existence but was not made available to the administrative law judge at the time the administrative law judge issued his 1994 Decision and Order." The Board stated that 20 C.F.R. § 725.456(d) and Wilkes v. F&R Coal Co. , 12 B.L.R. 1-1 (1988) "mandates the exclusion of withheld evidence in the absence of extraordinary circumstances."

[ III(G), exclusion of evidence on modification ]

   By unpublished decision in Daniel v. Jeffco Mining , BRB No. 97-1267 BLA (June 11, 1998), the Board held that the Supreme Court's decision in Metropolitan Stevedore Co. v. Rambo [Rambo II] , 117 S. Ct. 1953 (1997), does not preclude the filing of a duplicate claim on grounds that the miner "has had no coal dust exposure since the previous denial." The Board stated the following:

We reject employer's preliminary contention on appeal that the Supreme Court's decision in Rambo II bars the filing of the instant duplicate claim. Rambo II , a case on modification, is inapposite to a consideration of the instant case involving a duplicate claim. The issue in Rambo II was whether, and under what circumstances, a longshore worker who was experiencing no present post-injury reduction in wage-earning capacity could nonetheless be entitled to nominal benefits so as to toll the one-year time limitation of filing for modification. The Supreme Court in Rambo II did not indicate that its holding had any bearing whatsoever on duplicate black lung claims.

Slip op. at 3-4.

[ Rambo II decision not bar duplicate black lung claim ]