RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act
Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 143
August - September 1999
John M. Vittone
Chief Judge (Longshore)
Thomas M. Burke
Associate Chief Judge for Black Lung
II. Black Lung Benefits Act
Benefits Review Board
In Collins v. J & L Steel (LTV Steel), 21 B.L.R. 1-182 (1999), a case
was referred to an ALJ for a hearing on Claimant's petition for modification. After referral of the claim, the
Director moved that the claim be remanded to the district director's office to permit the naming of an
employer and its carrier as potential responsible parties. The motion was denied based upon the ALJ's
finding that the parties were properly dismissed in a previous proceeding. The Director did not appeal the
denial of its motion to remand. A hearing was then held and the ALJ awarded benefits against the Black
Lung Disability Trust Fund based, in part, upon the Director's stipulation as to the presence of
pneumoconiosis. In its appeal, the Director maintained that the ALJ's refusal to remand the claim
constituted error. The Board held, however, that the Trust Fund must remain liable for the payment of
benefits stating that the Director should have taken an interlocutory appeal of the ALJ's order denying a
remand. The Board reasoned that it has accepted interlocutory appeals "when undue hardship and
inconvenience can be avoided."
The Board distinguished the facts of this case from those presented in Director,
OWCP v. Oglebay Norton, 877 F.2d 1300 (6th Cir. 1989), Lewis v. Consolidation Coal
Co., 15 B.L.R. 1-37 (1990), and Beckett v. Raven Smokeless Coal Co., 14 B.L.R. 1-43
(1990) where the "new operator was actually identified before an administrative law judge had
conducted a hearing and the claimant had not been awarded benefits by an administrative law judge against
another operator or the Trust Fund." Rather, in this case, the Board stated that the Director had an
obligation to appeal the ALJ's refusal to remand the claim to rename a potential responsible operator and
carrier:
The Director chose not to appeal. In so doing, the Director risked a finding of entitlement
and the application of Crabtree to this case. It is now too late for the Director
to ask for remand to rename Clinchfield and (the West Virginia Coal Workers'
Pneumoconiosis Fund) as the responsible operator/carrier because if either of them were
held to be the responsible operator, claimant would be unduly prejudiced by having to
relitigate the claim. At the hearing, the Director stipulated to the existence of
pneumoconiosis arising out of coal mine employment. (citation omitted). Since neither
Clinchfield nor CWPF is bound by the Director's stipulation regarding these elements of
entitlement, claimant would be required to litigate the issues of the existence of
pneumoconiosis and whether pneumoconiosis arose out of coal mine employment, as well
as to relitigate the other issues.
Id. at 1-187. Turning to the merits of the claim, the Board held that it was error for the ALJ
to discredit a physician's opinion solely because he was a "non-examining physician." Similarly,
it was error to give greater weight to a treating physician's opinion without addressing its
"flaws," i.e., whether the doctor's failure to discuss the miner's lung cancer and heavy
smoking history rendered his report less probative.
[ interlocutory appeal; stipulations; weight according non-
examining and treating physicians ]
