RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act
Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 117
July - August 1994
A. Circuit courts of appeals
Freeman United Coal Mining Co. v. Foster , ___ F.3d ___, Case No. 93-2923 (7th Cir. July 18, 1994).
In a case where the miner invoked the presumption of total disability due to pneumoconiosis, a Seventh Circuit panel held that, contrary to the existing standard of rebuttal under 20 C.F.R. § 727.203(b)(2), such rebuttal is permitted where the miner is totally disabled due to any impairment, such as one of a non-pulmonary or non-respiratory nature. Specifically, a totally disabling impairment which is wholly unrelated to black lung disease is insufficient to preclude (b)(2) rebuttal. In so holding, the court stated the following:
Foster worked until his back injury. The medical records submitted at the first hearing led the ALJ to find that Foster had no pulmonary impairment of any kind. Additional medical records submitted after remand led to the conclusion that Foster suffer from chronic bronchitis and emphysema, but the ALJ did not find that these conditions would be disabling independent of the back injury. Foster suffered a back injury and is entitled to workers' compensation plus any other medical benefits his employer contractually agreed to supply. He is not disabled by pneumoconiosis and is not entitled to benefits under the Black Lung Benefits Act.
Slip op. at 7. The court concluded that the rebuttal provisions at § 727.203(b) be read "as a whole" to "identify and compensate 'total disability due to pneumoconiosis.'" Slip op. at 6.
[ VIII - 37, rebuttal under § 727.203(b)(2) ]
Consolidation Coal v. Worrell , ___ F.3d ___, Case No. 93- 3277 (6th Cir. June 22, 1994).
Where a claimant files a second or "new" claim within one year of a prior denial it is to be treated as a request for modification. The court rejected the employer's argument that a claimant must "specifically state[] grounds for modification -- as, for example, by identifying a mistake of fact or new evidence" in order to have the second claim treated as a request for modification. Slip op. at 5. Neither § 22 of the Longshore Act nor 20 C.F.R. § 725.310 requires a claimant to plead such a ground.
[ III - 96, 99, format of modification request ]
Grigg v. Director, OWCP , ___ F.3d ___, Case Nos. 92-1591 and 92-2462 (4th Cir. July 1, 1994).
The court reiterated that, under § 727.203(b)(3), the party opposing entitlement must "rule out" the causal nexus between the miner's total disability and his or her coal mine employment. In seeking to establish (b)(3) rebuttal through a finding of "no impairment," the court noted that such may occur "only where the relevant medical opinion states, without equivocation, that the miner suffers no respiratory or pulmonary impairment of any kind. Moreover, rebuttal under (b)(3) based upon a finding of no respiratory or pulmonary impairment is permitted only if the presumption was invoked under (a)(1) because (a)(4) invocation "presupposes the evidence shows a totally disabling respiratory or pulmonary impairment." The court specifically declined to consider whether the same principal would be applicable if the interim presumption had been invoked by ventilatory or blood gas studies.
With regard to treating physicians, the court held that, even where a treating physician "is not as highly qualified as the other physicians whose opinions appear in this record, his status as a treating physician entitles his opinion to great, though not necessarily dispositive, weight."
[ VIII - 53, rebuttal under § 727.203(b)(3) ; IV - 85, treating physician ]
Bethenergy Mines, Inc. v. Director, OWCP , ___ F.3d ___, Case Nos. 93-3428 through 93-3463 (3d Cir. Aug. 15, 1994).
The Third Circuit followed the Sixth Circuit's decision in Vahalik v. Youghiogheny & Ohio Coal Co. , 970 F.2d 161 (6th Cir. 1992) as well as that of the Benefits Review Board in Brown v. Sea "B" Mining Co. , 17 B.L.R. 1-115 (1993) to hold that neither the administrative law judge nor the Board has jurisdiction to decide interest assessment issues in medical benefits only claims.
[ III - 61, medical interest ]