USDOL
OALJ Law Library

RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 141
March - May 1999

James Guill
Associate Chief Judge for Longshore

Thomas M. Burke
Associate Chief Judge for Black Lung

II. Black Lung Benefits Act

   A. Circuit Courts of Appeal

   In C & K Coal Co. v. Taylor, 165 F.3d 254 (3d Cir. 1999), the court held that a successor mine operator was liable for the payment of benefits where the miner had worked for the predecessor mine company for 27 years and then had worked for the successor for only three months. Moreover, the court declined to apportion liability between the predecessor and successor. In so holding, the court disagreed with the successor operator's argument that it could not be held responsible because it had not employed the miner for at least one year. Upon review of the statute and regulations, the court determined that, once the successor purchased the assets of the predecessor company and the miner worked for the successor, then his years of coal mine employment with the predecessor were attributed to the successor. Finally, the court concluded that a 23 year delay from the initial application for benefits to the date of the responsible operator determination did not violate employer's due process rights. However, it stated the following:

Although we recognize that inadequate information initially hampered the Office's ability to grasp the relationship among Taylor, Lamp, and C & K, we are appalled that this relatively straightforward issue bounced three times between the Office and an ALJ, accompanied by unnecessary delays. Similarly, we cannot ignore that the Board compounded the delay by permitting the Director to flout its rules that set time limits for filing briefs.

. . .

The tortured route that this matter took towards resolution simply cannot be justified. Counsel for the current Director, with admirable candor, did not try to do so at oral argument. Rather, he assured us that steps have been taken in the past few years to ensure that Black Lung claims are expeditiously resolved. Statistics reveal that the number and age of pending Black Lung cases has, indeed, steadily decreased. We cannot hope but that this trend continues. Recent progress, however, is of little consolation to (Employer) . . ..

[ successor liability; delay in notification ]

   In Consolidation Coal Co. v. Borda, ___ F.3d ___, Case No. 98-1109 (4th Cir. Mar. 15, 1999), the court held that an 18 year delay in notifying an operator of its potential responsibility for the payment of benefits required that liability be transferred to the Black Lung Disability Trust Fund (Trust Fund). Citing to its decision in Lane Hollow Coal Co. v. Director, OWCP, 137 F.3d 799 (4th Cir. 1998) (wherein the court held that a 17 year delay violated Employer's due process rights), the Fourth Circuit stated the following:

Similarly, we believe that the government's failure to notify Consolidation Coal, to act upon Borda's 1981 request for modification, and to schedule a hearing on Borda's 1978 claim in a timely manner deprived Consolidation Coal of a meaningful opportunity to defend itself under § 727.203(b)(1) by showing that Borda was still doing 'comparable and gainful work' as a federal mine inspector. Because Borda worked as a federal mine inspector until 1987, six years after making his 1981 request for modification, Consolidation Coal's inability to assert that defense to the 1978 claim is traceable solely to the government's troubling failure to process the modification request in a timely manner and to notify Consolidation Coal.

   The court then affirmed the miner's entitlement to benefits to be paid by the Trust Fund. It reiterated its standard for establishing rebuttal under § 727.203(b)(3) to state that an employer must demonstrate either that the miner has no respiratory or pulmonary impairment of any kind or that such an impairment was not caused in whole or in part by the claimant's coal mine employment.

   Moreover, the court held that Claimant, who worked as a federal employee, was not required to "seek recourse against the federal government under FECA before seeking recourse against a private employer under the Black Lung Benefits Act." The court reiterated that "if an individual were entitled to benefits both from his private employer under the Black Lung Benefits Act and from the federal government under FECA, the FECA benefits would offset the amount owed by the private employer." The court concluded that the miner was "free" to choose to pursue benefits under both FECA and the Black Lung Benefits Act or to "seek compensation first, or even exclusively, under the more generous (black lung) statutory scheme."

[ delay in notification; rebuttal under § 727.203(b)(3); pursuit of benefits under FECA ]

   B. Benefits Review Board

   In Madden v. Gopher Mining Co., ___ B.L.R. ___, BRB No. 98- 0714 BLA (Feb. 19, 1999), the ALJ properly found no "material change in conditions" under § 725.309. In so holding, the Board rejected Claimant's argument that the ALJ's failure to consider and weigh Claimant's testimony regarding his extreme difficulty in "'performing even the simplest of tasks'"was error. Rather, the Board held that "lay testimony offered by claimant at the hearing . . . is generally insufficient to establish total disability unless it is corroborated by at least a quantum of medical evidence."

[ lay testimony insufficient to establish total disability and material change ]

   In Murphy v. Director, OWCP, ___ B.L.R. ___, BRB No. 98-0675 BLA (Feb. 11, 1999), the ALJ erred in failing to award a fee to an attorney who originally represented Claimant, but who did not represent him at the time he prevailed. The Board reiterated that a representative is entitled to fees, even if he was unsuccessful at a particular level of adjudication, so long as Claimant ultimately prevails. Thus, while the miner's original claim was denied by the ALJ while counsel was representing him, the Board determined that counsel's work during that time period was necessary and relevant to Claimant's award of benefits on modification. Finally, the Board reiterated that "any award of attorney fees does not become enforceable and payable until such time as an award of benefits becomes final and reflects successful prosecution of the claim."

[ representative's fees; successful prosecution ]

   In Hughes v. Clinchfield Coal Co., ___ B.L.R. ___, BRB No. 97- 0492 BLA (Apr. 15, 1999), coal workers' pneumoconiosis was established in the living miner's claim, although the claim itself was denied. A survivor's claim was subsequently filed and the ALJ concluded that principles of collateral estoppel precluded the issue of coal workers' pneumoconiosis from being relitigated in the survivor's claim. The Board, after setting forth the elements of collateral estoppel,¹ held that it did not apply. Specifically, the Board determined that the issue decided in the living miner's claim was not "a critical and necessary part of the judgment in the prior proceeding." The Board reasoned that "[w]hile claimant correctly notes that the existence of occupational pneumoconiosis is an essential element of entitlement in a living miner's claim, the establishment of that element does not support, and thus is not 'essential' to, a judgment denying benefits." The Board further held, with regard to the requirement that the party against whom estoppel is being asserted had a full and fair opportunity to litigate the issue in the previous forum, also may not have been satisfied. It stated that, in a survivor's claim, "where autopsy evidence was not available and could not have been adduced at the time of adjudication of the miner's claim, fairness consideration may warrant such an exception to allow relitigation of the issue of the existence of pneumoconiosis in a survivor's claim."

¹ The elements are as follows: (1) the issue sought to be precluded is identical to one previously litigated; (2) the issue was actually determined in the prior proceeding; (3) the issue was critical and necessary part of the judgment in the prior proceeding; (4) the prior judgment is final and valid; and (5) the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in the previous forum.

[Editor's note: This decision leaves open the possibility that collateral estoppel may apply where (1) the miner was awarded benefits, and (2) there is no autopsy evidence presented in the survivor's claim.]

[ collateral estoppel ]

   In Hess v. Director, OWCP, ___ B.L.R. ___, BRB No. 97-1803 BLA (Sept. 15, 1998), it was proper for the ALJ to question the reliability of a blood gas study where a physician stated that it was taken while Claimant was in the hospital and "'may not be representative of [claimant's] true lung function.'"

[ reliability of blood gas study ]

   In Lester v. Mack Coal Co., ___ B.L.R. ___, BRB No. 96-1575 BLA (Apr. 7, 1999) (en banc on recon.), the Board was confronted with whether an ALJ may require the pursuit of, and then adjudicate, corporate officer liability of an uninsured responsible operator. The Board held, however, that § 725.495(a), which provides that the president, secretary, and treasurer of an uninsured employer shall be jointly liable for the payment of any benefits, "cannot be used to modify the definition of responsible operator to include corporate officers." The Board noted that responsible operator provisions at § 725.491(c)(2)(i) provide that an individual may be held liable as a responsible operator if s/he is a sole proprietor, a partner in a partnership, or a member of a family business. As a result, the Board remanded the case to determine whether the named corporate officer also satisfied the definition of a responsible operator at § 725.491(c)(2). In this vein, it noted that the fact that the corporate officer was receiving compensation as an employee of the company would not preclude him from qualifying as a responsible operator. Finally, the Board held that a note in the file that the corporate officer was in bankruptcy proceedings was "clearly insufficient to establish that he is not financially able to make payments."

[ corporate officer liability; inability to pay ]

   In Henley v. Cowan and Co., ___ B.L.R. ___, BRB No. 98-1114 BLA (May 11, 1999), the Board adopted the Director's position to hold that "a transient aggravation of a non-occupational pulmonary condition is insufficient to establish pneumoconiosis as defined at Section 718.201." As a result, the Board concluded that the ALJ erred in finding legal pneumoconiosis based upon medical opinions which diagnosed a temporary worsening of pulmonary symptoms due to exposure to coal dust, but no permanent effect.

[ legal pneumoconiosis, defined ]