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RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act
Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 137
July 1998 - August 1998
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
A. Circuit Courts of Appeal
In Clinchfield Coal Co. v. Harris , ___ F.3d ___, Case No. 97-2155 (4th Cir. July 16, 1998), an appeal involving the issue of Employer's liability for pre-controversion fees, the court noted the following relevant history:
- [T]he Director, Office of Workers' Compensation Programs ("the Director"), made an initial finding that the Claimants were not eligible for black lung benefits. Each claimant then employed an attorney who began to do legal work before the employer controverted the claim. In all three cases, the employer eventually controverted the claim and an ALJ or the BRB subsequently awarded benefits to each claimant. The question in this consolidated appeal is whether the regulation implementing the statute allows the Claimants' attorneys to receive fees for pre-controversion work.
The Fourth Circuit held that "the regulation allows a successful claimant to receive pre-controversion attorney's fees, but only for work accomplished by an attorney" after the Director has made an initial determination that Claimant is not eligible for benefits. The court reasoned that no "adversarial relationship exists between the claimant and the employer in initial-award' cases until the employer decides that it will controvert the benefits award."
- [ payment of pre-controversion attorneys' fees ]
In Caney Creek Coal Co. v. Satterfield , ___ F.3d ___, Case No. 96-4246 (6th Cir. July 9, 1998), the Sixth Circuit analyzed the history of the Federal Coal Mine Health and Safety Act and its amendments with regard to assessment of liability against a responsible operator or the Black Lung Disability Trust Fund. The court held that because a miner failed to elect review of a claim he filed in 1973, then the transfer provisions of the 1981 amendments did not apply to a claim filed in 1978 and liability for the payment of benefits should be directed against the coal mine operator. In addition, contrary to Employer's assertions, the Sixth Circuit held that the filing of a Part C claim does not satisfy the requirement of filing an election card "or equivalent document" to support transfer to liability to the Trust Fund.
- [ transfer of liability ]
In Robbins v. Cyprus Cumberland Coal Co. , ___ F.3d ___, Case No. 97-3277 (6th Cir. July 21, 1998), the Sixth Circuit cited to its prior holding in Cunningham v. Island Creek Coal Co. , 144 F.3d 388 (6th Cir. 1998) to hold that a party is entitled to an " in-person'" hearing on modification upon request unless the ALJ properly grants a motion for summary judgment or the parties waive their rights to an oral hearing. However, the court further stated the following:
- As the Director points out, [t]here is no regulatory provision which would permit an administrative law judge to initiate summary judgment proceedings sua sponte.' (citation omitted).
The court rejected Employer's argument that a failure to obtain live testimony constituted harmless error because Claimant "could not have testified to anything that would change the result in this case" and " the parties rarely bring a live expert to a black lung hearing.'" The court concluded to the contrary that such arguments were immaterial and noted that a claimant may present additional documentary evidence at a hearing.
- [ "in-person" hearing on modification ]