RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 131
July 1997

James Guill
Associate Chief Judge for Longshore

Thomas M. Burke
Associate Chief Judge for Black Lung

   A. Circuit Courts of Appeal

   In Lango v. Director, OWCP , ___ F.3d ___, Case No. 96-3293 (3d Cir. Jan. 13, 1997), a claim involving an application for survivor's benefits, the court reiterated that a treating physician's opinion may be accorded greater weight than the opinions of other physicians of record but "the ALJ may permissibly require the treating physician to provide more than a conclusory statement before finding that pneumoconiosis contributed to the miner's death." Moreover, the court adopted a holding from the Eighth Circuit in Risher v. Office of Workers' Compensation Programs , 940 F.2d 327, 331 (8th Cir. 1991), to state that "the mere fact that a death certificate refers to pneumoconiosis cannot be viewed as a reasoned medical finding, particularly if no autopsy has been performed."

[ IV(D)(4)(f), weight of treating physician's opinion ; IV(D)(4)(b), death certificates ]

    B. Benefits Review Board

   In Jackson v. Jewell Ridge Coal Corp. , ___ B.L.R. ___, BRB No. 93-0927 BLA (June 30, 1997), the Board upheld the district director's finding that Employer, as opposed to Claimant, was liable for attorney fees "for services performed in the period between an initial denial of benefits by the Department of Labor and the responsible operator's receipt of notice of the claim and controversion of entitlement." The Board stated that "[t]he imposition of liability for attorney fees (upon Claimants) for pre-controversion representation of claimants is inconsistent with the 1972 Amendments providing clear congressional preference that the attorney fee not diminish the recovery of a claimant." The Board further noted that "enhancement for delay" is permissible because "[w]hat would be a reasonable fee if paid promptly is something less than a reasonable fee after a long delay."

[ XI(A)(9), employer's liability for pre-controversion attorney fees ]

   In Thomas v. BethEnergy Mines, Inc. , ___ B.L.R. ___, BRB No. 89-0500 BLA (May 30, 1997) (on reconsideration), a copy of which is attached, the Board held the following with regard to calculating the length of coal mine employment for purposes of identifying a responsible operator:

[W]e now hold that the administrative law judge properly rejected Big Mountain's argument that the language in Section 725.493(b) requiring the miner to have worked for at least 125 working days in order to establish regular employment was mandatory. We affirm the administrative law judge's finding that the provisions in Section 725.493(b) were included to provide guidance in factually disputed cases on the question of how to calculate a year of employment for purposes of Section 725.493, and were not intended to deny liability where it is uncontested that a miner was carried on the payroll as an employee for a period in excess of one year.

   The Board then stated that the time during which the miner was on sick leave for a back injury counted towards his length of coal mine employment with the responsible operator:

Because the miner's time on sick leave counts towards his employment with Big Mountain, the miner was employed with Big Mountain for more than 125 working days. If the miner was not being paid for his time from work due to the accident or illness or was not excused during his absences from work, Big Mountain failed to establish this fact despite its burden to do so. (citations omitted).

[ II(L), length of coal mine employment for purposes of determining responsible operator, use of 125-day rule, sick leave ]