Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 131
July 1997
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
A. Circuit Courts of Appeal
In Lango v. Director, OWCP, ___ F.3d ___, Case No. 96-3293 (3d
Cir. Jan. 13, 1997), a claim involving an application for survivor's benefits, the court reiterated
that a treating physician's opinion may be accorded greater weight than the opinions of other
physicians of record but "the ALJ may permissibly require the treating physician to
provide more than a conclusory statement before finding that pneumoconiosis contributed to the
miner's death." Moreover, the court adopted a holding from the Eighth Circuit in
Risher v. Office of Workers' Compensation Programs, 940 F.2d 327, 331 (8th Cir.
1991), to state that "the mere fact that a death certificate refers to pneumoconiosis cannot
be viewed as a reasoned medical finding, particularly if no autopsy has been performed."
[ IV(D)(4)(f), weight of treating physician's opinion; IV(D)(4)(b),
death certificates ]
B. Benefits Review Board
In Jackson v. Jewell Ridge Coal Corp., ___ B.L.R. ___, BRB No.
93-0927 BLA (June 30, 1997), the Board upheld the district director's finding that Employer, as
opposed to Claimant, was liable for attorney fees "for services performed in the period
between an initial denial of benefits by the Department of Labor and the responsible operator's
receipt of notice of the claim and controversion of entitlement." The Board stated that
"[t]he imposition of liability for attorney fees (upon Claimants) for pre-controversion
representation of claimants is inconsistent with the 1972 Amendments providing clear
congressional preference that the attorney fee not diminish the recovery of a claimant."
The Board further noted that "enhancement for delay" is permissible because
"[w]hat would be a reasonable fee if paid promptly is something less than a reasonable fee
after a long delay."
[ XI(A)(9), employer's liability for pre-controversion attorney
fees]
In Thomas v. BethEnergy Mines, Inc., ___ B.L.R. ___, BRB No.
89-0500 BLA (May 30, 1997) (on reconsideration), a copy of which is attached, the Board held
the following with regard to calculating the length of coal mine employment for purposes of
identifying a responsible operator:
[W]e now hold that the administrative law judge properly rejected Big
Mountain's argument that the language in Section 725.493(b) requiring the
miner to have worked for at least 125 working days in order to establish
regular employment was mandatory. We affirm the administrative law
judge's finding that the provisions in Section 725.493(b) were included to
provide guidance in factually disputed cases on the question of how to
calculate a year of employment for purposes of Section 725.493, and were
not intended to deny liability where it is uncontested that a miner was
carried on the payroll as an employee for a period in excess of one
year.
The Board then stated that the time during which the miner was on sick
leave for a back injury counted towards his length of coal mine employment with the responsible
operator:
Because the miner's time on sick leave counts towards his employment
with Big Mountain, the miner was employed with Big Mountain for more
than 125 working days. If the miner was not being paid for his time from
work due to the accident or illness or was not excused during his absences
from work, Big Mountain failed to establish this fact despite its burden to
do so. (citations omitted).
[ II(L), length of coal mine employment for purposes of determining
responsible operator, use of 125-day rule, sick leave ]