Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 129
April 1997
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
Circuit courts of appeal
In Lovilia Coal Co. v.
Harvey, ___ F.3d ___, Case No. 95-4122 (8th Cir. Mar. 21, 1997), the court held that
pneumoconiosis is a progressive and irreversible disease such that it may develop in a miner after
he has ceased working in the mines. The Eighth Circuit then addressed the "material
change in conditions" standard to be applied to subsequent claims under 20 C.F.R. §
725.309 and held that it would apply the "one-element standard" adopted by the
Third, Fourth, and Sixth Circuits. Specifically, the judge must consider "whether the
weight of the new evidence of record . . . ., submitted by all the parties, establishes at least one of
the elements of entitlement previously adjudicated against the miner." The court further
noted that " the element must be one capable of change,'" i.e. the existence
of pneumoconiosis or total disability. In this vein, the court also held the following:
[T]he Director explains that if a miner was found not to have pneumoconiosis at
the time of an earlier denial, and he thereafter establishes that he has the disease,
in the absence of evidence showing the denial was a mistake, an inference of
material change' is not only permitted but compelled.' We agree.
[ III(F)(2), "material change in conditions" under §
725.309 ]
In Lane v. Union Carbide Corp., ___ F.3d ___, Case No. 95-3131
(4th Cir. Jan. 24, 1997), the court held that it was proper to "reject a medical opinion
(which is) based on an invalid study." Moreover, the court determined that a physician's
opinion was not "hostile-to-the-Act" where he concluded that simple
pneumoconiosis would "not be expected" to cause a pulmonary impairment. In so
holding, the court concluded that this opinion was based upon the specific facts of the case unlike
the opinion at issue in Thorn v. Itmann Coal Co., 3 F.3d 713 (4th Cir. 1995), where the
doctor stated that "simple pneumoconiosis" does not cause total disability "as a
rule."
[ IV(D)(4)(d), hostile-to-the-Act; opinion based upon invalid
study ]
In Cal-Glo Coal Co. v.
Yeager, ___ F.3d ___, Case No. 95-4038 (6th Cir. Jan. 14, 1997), the court reiterated
that the administrative law judge must reopen the record to permit the introduction of evidence
where there is a change in legal standards. Specifically, the court held that "when an
employer rebuts the interim presumption under the pre-York standard applicable to
§ 727.203(b)(2), but not under the post-York standard, the BRB commits a
manifest injustice if it refuses to allow the employer to present new evidence to the ALJ that the
employer believes will establish rebuttal either under the post-York standards applicable
to § 727.203(b)(2) or another regulatory subsection." (emphasis added).
[ IV(a)(4), reopening the record/change in legal standard ]