RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 133
November 1997

James Guill
Associate Chief Judge for Longshore

Thomas M. Burke
Associate Chief Judge for Black Lung

    A. Circuit Court of Appeals

   In Peabody Coal Co. v. Spese , 117 F.3d 1001 (7th Cir. 1997)(en banc), the Seventh Circuit sitting en banc reversed a panel decision to hold that a claim filed under § 725.309(c), where a "material change in condition" is established, does not merge with the earlier claim for purposes of determining the onset of benefits unless the earlier claim is "pending or finally denied before March 1, 1978." With regard to the standard for establishing a "material change in condition," the court held that it is proper:

. . . to require evidence showing that the claimant's physical condition changed materially between the time of the earlier denial and the new application, such that a finding for the miner on the new application would not imply that the earlier denial was erroneous.
However, the court further held that the "one-element" standard enunciated by the Sixth Circuit in Sharondale Corp. v. Ross , 42 F.3d 993 (6th Cir. 1994) was not contrary to its holding in Sahara Coal Co. v. Director, OWCP [McNew] , 946 F.2d 554 (7th Cir. 1991). Specifically, the court examined the standard proposed by the Director and stated the following:
If . . . the Director means that at least one element that might independently have supported a decision against the claimant has now been shown to be different (implying that the earlier denial was correct), then we would agree that the one-element' test is the correct one. If the Director means something more expansive, his position would go beyond the principles of res judicata that are reflected in § 725.309(c) and that we endorsed in Sahara Coal .
   Finally, the court held that "the question (of) whether simple pneumoconiosis can progress in the absence of further exposure to coal dust is a question of legislative fact."
[ III(F)(2), multiple claims under 20 C.F.R. § 725.309 ]
    B. Benefits Review Board

   In Jackson v. Jewell Ridge Coal Corp. , 21 B.L.R. 1-27 (1997)(en banc)(JJ. Smith and Dolder, dissenting), the Board held that Employer was liable for pre-controversion fees and stated the following:

This approach is consistent with the legislative history of the 1972 amendments to the Longshore Act. (citations omitted). Section 39(c)(1) of the Longshore Act provides for legal assistance upon request from the Secretary, revealing Congressional acknowledgment of the practical challenges posed to claimants whose education, work-related injury and possible unfamiliarity with compensation law may disadvantage them in the successful initiation and processing of a claim. The imposition of liability for attorney fees for pre-controversion representation (against) claimants is inconsistent with the 1972 Amendments providing clear Congressional preference that the attorney fee not diminish the recovery of a claimant.
Id. at 1-34.
[ XI(A), precontroversion liability for attorney's fees ]
   In Cline v. Westmoreland Coal Co. , ___ B.L.R. ___, BRB No. 96-0603 BLA (Oct. 17, 1997), the Board remanded for application of the Fourth Circuit's holding in Lisa Lee Mines v. Director, OWCP , 86 F.3d 1358 (4thCir. 1996), rev'g en banc , 57 F.3d 402 (4th Cir. 1995), cert. denied , 117 S. Ct. 763 (1997), which was issued subsequent to the administrative law judge's decision. The Board further held that, in reviewing the evidence to determine whether a "material change in condition" is established, it was proper for the administrative law judge to refuse to consider evidence "in existence at the time the first claim was decided on grounds that such evidence is not applicable in determining whether there has been a change in condition since the denial.'"

   The Board reasoned the following:

Claimant's argument that the first claim should be reopened since employer withheld the results of Dr. Zaldivar's report in violation of 20 C.F.R. § 725.414, which requires that all evidence be submitted to the district director when the case is pending before the district director . . . has no merit since Dr. Zaldivar's report was generated . . . when the case was before Judge Patton, not before the district director.
The Board indicated that Claimant could have requested a copy of the report pursuant to 29 C.F.R. § 18.18(b)(4), but did not do so. Slip op. at 4, n. 3. Claimant, during discovery, requested "medical information obtained by employer which employer did not intend to introduce into evidence and considered privileged.'" The Board declined to find that Federal Rule of Civil Procedure 26(b)(4)(B) applied to black lung claims. Indeed, it determined that the federal procedural rules "for discovery do not apply to administrative proceedings, unless specifically provided by statute or regulation." However, the Board held that, on remand, the "ALJ should reconsider his Order Denying Motion to Compel in accordance with the standard for the scope of discovery provided at 29 C.F.R. § 18.14 in conjunction with the provisions of 20 C.F.R. § 725.455" under his "discretionary authority." It further stated:
We reject, however, as overbroad, claimant's interpretation of Section 725.455 that an ALJ has an obligation to fully develop the record, develop the evidence, get all the evidence in . . ..'

We also reject the position of claimant and the Director that the provision of 20 C.F.R. § 725.414, which requires the operator to submit evidence obtained to the district director and all parties, is extended to the administrative law judge.
   Finally, the Board noted that "Employer correctly argues that the administrative law judge erred in finding that employer could not challenge its designation as the responsible operator because it did not appeal Judge Chao's Decision and Order wherein he found that employer was the responsible operator. Because claimant's appeal from Judge Chao's denial of benefits was untimely filed and dismissed by the Board, employer was not an aggrieved party."
[ discovery of medical evidence; collateral estoppel to challenge designation as responsible operator ]
   In Mays v. Piney Mountain Coal Co. , ___ B.L.R. ___, BRB No. 94-0170 BLA (Sept. 30, 1997), the Board held that the administrative law judge properly found that simple coal workers' pneumoconiosis hastened the miner's death, which was immediately due to pancreatic cancer with metastases. In so finding, the Board determined that the administrative law judge properly relied upon "the well-reasoned medical opinion of Dr. Stefanini, (that pneumoconiosis) contributed to the miner's inability to expectorate mucus."

   The Board then addressed whether the regulations required "that a widow and a surviving divorced spouse would receive an amount equal to that of a primary beneficiary supplemented by an augmentee, or 150% of the basic benefit amount." The Board concluded to the contrary that, where "the miner is survived by two widows,' it is reasonable to conclude that each surviving

widow' is entitled to compensation under the Act as a primary beneficiary, thereby receiving 100% (each) of the basic benefit."

[ III(H), surviving spouse and surviving divorced spouse each entitled to full benefit amount ]
   In Church v. Eastern Assoc. Coal Corp. , ___ B.L.R. ___, BRB No. 95-0516 BLA (Sept. 30, 1997), rev'g in part and aff'g in part on recon. , 20 B.L.R. 1-8 (1996), the Board vacated its affirmance of the administrative law judge's findings under § 725.309 in light of the subsequently issued decision in Lisa Lee Mines v. Director, OWCP , 86 F.3d 1358 (4th Cir. 1996)(en banc). However, the Board reaffirmed its earlier holding that the administrative law judge properly analyzed the medical evidence under § 718.202(a)(4) in crediting physicians' opinions which were supported by underlying objective studies. Moreover, the Board reiterated that "an administrative law judge may not discredit an opinion solely on the ground that it is based, in part, upon an x-ray reading which is at odds with the administrative law judge's finding with respect to the x-ray evidence of record."
[ IV(D)(4), objective evidence underlying medical report ]