Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 116
June 1994
A. United States Supreme Court
In
Director, OWCP v. Greenwich Collieries, et al., ___
U.S. ___, Case No. 93-744 (June 20, 1994), the United States
Supreme Court upheld the Third Circuit's holdings that the
"true doubt" rule is inapplicable to cases arising
under the Black Lung Benefits Act.
[ IV - 66, "true doubt" rule ]
B. Circuit courts of appeals
In Johnson v. Peabody Coal Co., ___ F.3d ___, Case
No. 93-3439 (6th Cir. June 1, 1994), the Sixth Circuit held that
the miner's survivor was not entitled to black lung benefits
where her claim was "predicated upon the theory that her
husband was severely depressed at the time he committed suicide
and that this depression was caused by his illnesses, including
pneumoconiosis." In so holding, the court determined that
"legislative history is silent as to whether a psychological
component would establish the necessary link between
pneumoconiosis and death" and that "[p]sychiatry is far
from an exact science" resulting in the court being
"reluctant to plunge the DOL and the courts into yet another
battle of courtroom experts, unless Congress has decided that is
the way it should be."
[ suicide ]
In Drummond Coal Co. v. Freeman, ___ F.3d ___, Case
No. 92-6425 (11th Cir. 1994), the Eleventh Circuit articulated
parameters for weighing medical evidence under Part 727. The
court held that an ALJ "need not ... find that a medical
opinion is either wholly reliable or wholly unreliable."
Thus, it would not be impermissible for an ALJ to find a doctor's
opinion reliable on the issue of degree of impairment but
unreliable on the issue of causation. However, quoting from the
dissent in Mullins Coal, 484 U.S. at 167, the court noted
that "when the weight of evidence in one of the medical-
evidence categories invokes the presumption, then the same
evidence cannot be considered during rebuttal to challenge the
existence of the fact proved, but it may be considered if
relevant to rebut one of the presumed elements of a valid claim
for benefits."
[ IV - 21, weighing medical evidence ]
In the Part 727 case of Zeigler Coal Co. v. Office of
Workers' Compensation Programs, ___ F.3d ___, No. 93-1131
(7th
Cir. May 11, 1994), the administrative law judge found the x-ray
evidence, which consisted of 2 negative readings of one x-ray and
3 negative and 2 positive readings of another x-ray, to be
equally balanced and applied the "true doubt" rule to
invoke the interim presumption. The Seventh Circuit held that
"while our opinions have been critical of decisions based
entirely on 'head counts' of experts," there was no evidence
in the record to support the ALJ's conclusion that the two
positive readings outweighed the three negative readings. As
stated in prior Seventh Circuit decisions, the ALJ must attempt
to weigh x-ray readings "by considering the age of the
readings, the qualifications of the experts, the persuasiveness
of their reports and any other relevant evidence."
[ IV - 12, weighing x-ray evidence ]
C. Benefits Review Board
In Lucas v. Director, OWCP, BRB No. 92-1618 BLA (May
26, 1994)(unpub.), an award of a representative's fee was
appealed in an overpayment case in which the attorney negotiated
the repayment schedule. The Board held that the claimant, rather
than the Trust Fund, was liable for the fee, as the proceeding
was nonadversarial and the district director did not object to
the repayment schedule.
[ XI - 5, attorney's fees in repayment cases ]
In Crum v. Wolf Creek Collieries, 18 B.L.R. ___, BRB
No. 92-2309 BLA (Apr. 13, 1994)(pub.), the Board adopted the
Ninth Circuit's holding in Metropolitan Stevedore Co. v.
Brickner, 11 F.3d 887 (9th Cir. 1993), that, pursuant to
section 26 of the Longshore and Harbor Workers' Compensation Act,
as incorporated in the Black Lung Benefits Act, "only a
federal court can assess a party's costs as sanction against a
claimant who institutes or continues, without reasonable ground,
workers' compensation proceedings under the LHWCA." Thus,
the Board, the administrative law judge, and the district
director are without authority to impose section 926 costs.