RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act
Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 125
ay 1996 - August 1996
A. Circuit Courts
In Stiltner v. Island Creek Coal Co. , 86 F.3d 337 (4th Cir. 1996), a panel of the Fourth Circuit held that a physician's opinion should not be discredited if he merely states that a miner "likely" would have exhibited a restrictive impairment in addition to chronic obstructive pulmonary disease. This is in apparent conflict with the decision of another panel of the court in Warth v. Southern Ohio Coal Co. , 60 F.3d 173 (4th Cir. 1995) wherein the panel held that a physician's opinion may be discredited if it is based upon the assumption that coal dust exposure does not produce an obstructive impairment. A petition for rehearing en banc in Stiltner is currently pending before the court.
- [ obstructive v. restrictive impairment ]
In Keating v. Director, OWCP , 71 F.3d 1118 (3d Cir. 1995), the court held that, on modification, "the [ALJ] must review all evidence of record - any new evidence submitted in support of modification as well as the evidence previously of record - and 'further reflect' on whether any mistakes [of] fact were made in the previous adjudication of the case."
- [ modification under § 725.310; scope of review ]
B. Benefits Review Board
In Croucher v. Director, OWCP , ___ B.L.R. ___, BRB No. 94-2238 BLA (Aug. 29, 1996)(en banc), a copy of which is attached, the Board upheld an administrative law judge's method of calculating the length of Claimant's coal mine employment. Specifically, the Board concluded that, based upon the miner's social security records as the most reliable evidence of his employment, the judge properly counted only those quarters wherein the miner earned in excess of $50 per quarter from 1937 through 1946. Further, the Board held that it was proper for the judge to credit the testimony of Claimant's wife to determine the amount of coal mine employment prior to 1937.
The Board rejected Claimant's argument that his length of coal mine employment must be determined using the 125-day rule set forth at § 718.301(b) stating that this provision relates to identification of the proper responsible operator, not the actual length of a miner's employment as is required under § 725.493. The Board noted the following:
- [T]he 125 day provision set out at Section 725.493(b) may be applicable once the threshold requirement that the miner be employed for at least one year, or partial periods totalling one year, is satisfied. (citation omitted). Once that requirement is satisfied, employer is provided an opportunity to establish that the miner's employment was not regular by proving that the miner has not worked for employer for a period of at least 125 working days. Thus, the board has held that a mere showing of 125 days of coal mine employment does not, in and of itself, establish one year of coal mine employment under 20 C.F.R. § 725.493. (citation omitted).
In so holding, the Board noted its disagreement in this regard with the Seventh and Eighth Circuits in Landes v. Director, OWCP , 997 F.2d (7th Cir. 1993) and Yauk v. Director, OWCP , 912 F.2d 192 (8th Cir. 1989) to state that application of the 125 day rule to determine the miner's length of coal mine employment results in miners receiving "credit for coal mine employment during periods of time where there is no evidence to support any coal mine employment whatsoever."
In Cole v. East Kentucky Collieries , ___ B.L.R. ___, Case No. 94-0398 BLA (June 27, 1996), the Board held that:
- [A] finding of evidentiary equipoise under the discredited true doubt principle does not automatically require a finding of insufficient evidence under a preponderance of the evidence standard. Rather, the administrative law judge as fact-finder must determine whether, under this standard, claimant has met his burden of proof pursuant to Section 7(c) of the Administrative Procedure Act . . ..
The Board did not elaborate further on this holding. The Board also adopted the Fourth Circuit's decision in Director, OWCP v. Trace Fork Coal Co. [Matney] , 67 F.3d 503 (4th Cir. 1995), in designating a responsible operator, to state that the language of "Section 725.493(a)(4) does not preclude from responsibility prior operators who are not also successor operators."
- [ weighing medical evidence formerly found in equipoise; Board adopts Matney to hold prior and successor operators liable ]
In Williams v. Lovilia Coal Co. , ___ B.L.R. ___, BRB No. 94-3703 BLA (June 14, 1996), the Board held that a miner's status as a partner of the responsible operator did not "affect his eligibility for benefits based on his work for that concern" and Employer's "status as the responsible operator does not turn on (the miner's) partnership agreement." Citing to the Act, which lists partnerships as entities which may be held liable for benefits, as well as Federal Rule of Civil Procedure 17(b)(1), which provides that a partnership may be sued to enforce a substantive right against it, the Board concluded that "a partnership which operates a coal mine . . . is properly named as the responsible operator under the firm name." The Board further noted that "there is no option in (the Act) for a partner or self-employed person to opt out of coverage for qualifying coal mine employment."
- [ partnership as a responsible operator ]
In Blair v. R&E Coal Co. , 20 B.L.R. 1-__, BRB No. 88-1054 BLA (Apr. 9, 1996), the Board held, on reconsideration, that benefits may be augmented to the survivor of a miner who adopted a child after the miner's death. In so holding, the Board concluded that the "relationship test" was satisfied upon legal adoption of the child and that, because the child is unmarried and under 18 years of age, she also satisfies the "dependency test."
- [ augmentation of benefits; adopted child ]
In Branham v. Bethenergy Mines, Inc. , 20 B.L.R. 1-27 (1996), the Board vacated an administrative law judge's denial of Employer's petition for modification to state the following:
- [A]n administrative law judge may not invoke the remedial nature of the BLBA to conclude, as a matter of law, that modification on behalf of a party opposing entitlement could never render justice under the Act.
- Section 22 accords both a claimant and a party respondent access to the means by which an award or denial of a compensation claim may be reopened.
The Board reiterated that modification may be based upon new evidence or further reflection upon the evidence already submitted.
- [ modification by employer under § 725.310 ]
By Decision and Order on Reconsideration in Reigh v. Director, OWCP , ___ B.L.R. ___, BRB No. 92-1380 BLA (June 12, 1996), the Board held that the Act "mandates a result whereby a (surviving) party filing a Part C claim be able to avail himself of derivative entitlement from a previous award of benefits under a Part B claim." However, where Claimant, the deceased miner's daughter, had been "married, divorced, remarried and subsequently widowed," she lost her status as an unmarried dependent child of the miner because, as noted by the Board, "a surviving child of the beneficiary cannot revive her status as an unmarried dependent of her parents upon the death of her husband." Citing to Third Circuit precedent, which had appellate jurisdiction over the case, the Board stated that "a dependent child's eligibility, once lost, does not reemerge upon subsequent events resulting in the child satisfying conditions of dependency . . .."
- [ survivor's benefits; dependency ]
By Decision and Order on Reconsideration in Carson v. Westmoreland Coal Co. , ___ B.L.R. ___, BRB No. 93-0459 BLA (Aug. 26, 1996), mod. on recon. , 19 B.L.R. 1-16 (1994), the Board concluded that its earlier holding that:
- The disabling loss of lung function due to extrinsic factors, e.g. , loss of muscle function due to stroke, does not constitute respiratory or pulmonary disability pursuant to (20 C.F.R. § 718.204(c))
was in error and the Board struck this conclusion from its earlier decision.
- [ consideration of extrinsic factors under § 718.204(c) ]