RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 120
January - February 1995

A. Circuit courts of appeals

In Barber v. Director, OWCP , ___ F.3d ___, Case No. 93-1833 (4th Cir. Jan. 10, 1995), the court reiterated that, under § 718.305, "[o]n claims filed before January 1, 1982, where a miner has fifteen years of employment and a totally disabling respiratory impairment, it is presumed that pneumoconiosis is a contributing cause of his impairment." In this vein, the court noted that rebuttal was not established because the autopsy report and related opinions "do not identify the origin of (the miner's) diseases" in light of the broad legal definition of pneumoconiosis.

[ VI - 10, 15 year rebuttable presumption ]

"Pneumoconiosis" is a legal term defined by the Act and the administrative law judge "must bear in mind when considering medical evidence that physicians generally use 'pneumoconiosis' as a medical term that comprises merely a small subset of the afflictions compensable under the Act." Thus, a judge should review evidence in light of the much broader legal definition. Barber v. Director, OWCP , ___ F.3d ___, Case No. 93-1833 (4th Cir. Jan. 10, 1995). See also Hobbs v. Clinchfield Coal Co. , ___ F.3d ___, Case No. 93-2314 (4th Cir. Jan. 18, 1995) ("a medical diagnosis of no pneumoconiosis is not equivalent to a legal finding of no pneumoconiosis").

[ II - 36, "pneumoconiosis" defined ]

In Toler v. Eastern Assoc. Coal Co. , ___ F.3d ___, Case No. 94-1632 (4th Cir. Jan. 10, 1995), the court held that medical opinions wherein the miner is determined not to suffer from pneumoconiosis "can carry little weight" in assessing the etiology of the miner's total disability. Moreover, the court held that the fact-finder must resolve conflicting heights of the miner as recorded on the ventilatory study reports, particularly where such height discrepancies directly affect whether the tests are qualifying.

[ VI - 17, total disability ; IV - 102, height discrepancies between ventilatory studies ]


In Jewell Smokeless Coal Corp. v. Street , ___ F.3d ___, Case No. 93-2187 (4th Cir. 1994), the Fourth Circuit concluded that, under § 718.204(a), "nonrespiratory and nonpulmonary impairments have no bearing on establishing total disability due to pneumoconiosis." Rather, the miner must demonstrate that he "has a totally disabling respiratory or pulmonary condition . . . and show that his pneumoconiosis is a contributing cause to this total disability."

[ VI - 17, total disability ]

In Sharondale Corp. v. Ross , ___ F.3d ___, Case No. 93- 3644 (6th Cir. Dec. 16, 1994), the Sixth Circuit declined to embrace either the Seventh Circuit's McNew standard or the standard set for by the Board in Spece for finding a "material change in condition." Rather, the court adopted the hybrid approach proposed by the Director to hold that:

  • [T]o assess whether a material change is established, the administrative law judge must consider all of the new evidence, favorable and unfavorable, and determine whether the miner has proven at least one of the elements of entitlement previously adjudicated against him. If the miner establishes the existence of that element, he has demonstrated, as a matter of law, a material change. Then the ALJ must consider whether all of the record evidence, including that submitted with the previous claims, supports a finding of entitlement to benefits.

    • The court reasoned that such an approach "[a]ffords a miner a second chance to show entitlement to benefits provided his condition has worsened" but that "entitlement is not without limits, however; a miner whose condition has worsened since the filing of an initial claim may be eligible for benefits but . . . no miner is entitled to benefits simply because his claim should have been granted."

    [ III - 91, duplicate claims ]

    B. Benefits Review Board

    in Reigh v. Director, OWCP , ___ B.L.R. ___, BRB No. 92- 1380 BLA (Jan. 20, 1995)(published), the Board held that a blind dependent is not entitled to "automatic derivative entitlement under § 725.218(a)(2) where a determination has been made under Part B that the miner was totally disabled due to pneumoconiosis at the time of death or that the miner's death was due to pneumoconiosis since this interpretation is not inconsistent with the regulations and avoids a harsh result." Said differently, the Board held that "the automatic derivative entitlement provision pursuant to § 725.218(a)(2) is not available to claimant in this case, since the previous finding that the miner's death was due to pneumoconiosis was made in a survivor's claim filed pursuant to Part B of the Act." But see Deloe v. Director, OWCP , 15 B.L.R. 1-9 (1991) (the Board held to the contrary following Sixth Circuit law). Consequently, the dependent's claim, which was filed in 1989, was adjudicated under Part 718 standards requiring evidence of death due to pneumoconiosis.

    [ II - 30, derivative entitlement/child ]

    In Petrosky v. Donex Mining, Inc. , BRB No. 94-652 BLA (Dec. 22, 1994)(unpublished), the Board held that the claimant had properly waived his right to legal representation under the Act. Therein, claimant appeared pro se before the administrative law judge, who failed to notify him that an attorney could not charge him a fee. The administrative law judge, however, did notify the claimant that he had a right to an attorney, offered to continue the proceeding until claimant could obtain representation, gave the claimant the opportunity to testify fully, and allowed the claimant to object to the submission of any evidence.

    [ XI - 1, right to counsel ]

    In contrast to Petrosky, supra , the Board later issued Talbert v. Meadow River Coal Co. , BRB No. 93-1525 BLA (Dec. 29, 1994)(unpublished) wherein the Board remanded the case for a de novo hearing, as in addition to failing to advise a pro se claimant of the advantages of obtaining representation, the administrative law judge further failed to inform the claimant that he is entitled to representation by counsel of his choice.

    [ XI - 1, right to counsel ]

    In Patrick v. Island Creek Coal Co. , BRB No. 93-1521 BLA (Dec. 29, 1994)(unpublished), the Board cited Shupink v. LTV Steel Co ., 17 BLR 1-24 (1992) and Rice v. Sahara Coal Co. , 15 BLR 1-19 (1990)(en banc), to state that in a claim involving a petition for modification, the administrative law judge is not to weigh new evidence against any contrary evidence when determining whether a "change in condition" is established.

    [ III - 102, modification, "change in condition" ]