RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 118
September - October 1994

Benefits Review Board

Tedesco v. Director, OWCP , 18 B.L.R. 1-__, BRB No. 93-0419 BLA (Apr. 26, 1994)(published).

The Board held that an administrative law judge "is not required to accord greater weight to the opinion of a physician based solely on his status as claimant's treating physician. Rather, this is one factor which may be taken into
consideration . . .." Moreover, a physician's report may be given less weight where he or she does not adequately explain a conclusion which is contraindicated by the objective testing performed by the physician. Finally, the Board reiterated its earlier holdings that lay testimony in a living miner's Part 718 claim "is not sufficient, in and of itself, to establish total disability."

[ IV - 71, reasoned opinion ; IV - 85, treating physician ; IV - 86, lay testimony ]

Wright v. Manning Coal Corp. , BRB No. 93-0838 BLA (July 27, 1994)(unpublished).

By unpublished decision, the Board held that an administrative law judge's dismissal of a claim as untimely was improper even where counsel conceded that Claimant was informed by a physician that he was totally disabled and that he suffered from coal workers' pneumoconiosis. In so holding, the Board noted that the record was devoid of evidence that the miner had "actual physical receipt" of the physician's written opinion. Moreover, while the physician diagnosed coal workers' pneumoconiosis and total disability, the Board found that, in his report, he did "not in fact specifically attribute claimant's total disability to pneumoconiosis arising out of coal mine employment." Thus, the Board concluded that "inasmuch as a determination regarding rebuttal of the timeliness presumption is fact-specific and depends on the administrative law judge's credibility assessments of the documentary and testimonial evidence . . . an administrative law judge should not dismiss a case without a de novo hearing pursuant to 20 C.F.R. § 725.451."

[ I - 15, statute of limitations ]