RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act
Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 140
January - February 1999
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
A. Circuit Courts of Appeal
In Peabody Coal Co. v. Director,
OWCP [Durbin], ___ F.3d ___, Case No. 97-3721 (7th Cir. 1999), the court held that
an ALJ improperly excluded an autopsy report of Dr. Naeye on grounds that no good cause was
established for its late submission on remand. Moreover, the court concluded that the ALJ
improperly discredited a reviewing physician's report which was based, in part, upon the
excluded autopsy report. In the ALJ's decision on remand, he stated the following:
Dr. Naeye's review of the autopsy was submitted on April 1, 1994, well after the
deadline for submission of evidence. No good cause was shown for the lateness
of the submission only a confession of inadvertence. Inadvertence may serve as
a reason for failure to meet a deadline; it will not do as an excuse. Dr. Naeye's
report is rejected. That being the case, to the extent that Dr. Fino's appraisal of
the extent of Claimant's pneumoconiosis is based on Dr. Naeye's report, that
appraisal is flawed.
The Seventh Circuit held that a medical expert may base his or her opinion upon evidence
which has not been made part of the record in administrative proceedings which are not confined
by the federal rules of evidence. The court reasoned that "[t]he reason these rules are not
applicable to agencies is that being staffed by specialists the agencies are assumed to be less in
need of evidentiary blinders than lay jurors or even professional, though usually unspecialized,
judges." It stated that "Naeye's report may have been put into evidence late, but
there is no suggestion that it was too late to enable the claimant to prepare a rebuttal or that Fino
was irresponsible in relying on the report in formulating his own opinion about the causality of
(the miner's) disability." As a result, the Seventh Circuit vacated the ALJ's award of
benefits and remanded the case to the ALJ for consideration of Dr. Fino's opinion.
1 The court's decision contains an
introductory statement regarding the limited circumstances under which the unpublished decision
may be used.
[ reopening the record on remand; transfer of liability ]
B. Benefits Review Board
In Shaffer v. Director, OWCP, ___ B.L.R. ___, BRB No. 95-2083
BLA (Nov. 30, 1998) (en banc on recon.), the Board agreed with the Director's position
that, "while an employer may be required to pay an enhanced attorney's fee due to delay,
such an enhancement is not appropriate where the Trust Fund is liable for the fee because the Act
does not specifically waive the government's sovereign immunity from an award of interest. The
Board likened enhancement of an attorney's fee for delay as imposing interest upon the Trust
Fund which is not permitted under the Act or implementing regulations.
[ enhancement of attorney fee prohibited in Trust Fund cases ]
In Jones v. Badger Coal Co., ___ B.L.R. ___, BRB No. 97-1393
BLA (Nov. 30, 1998) (en banc), the first issue presented to the Board was whether
Claimant's collateral estoppel argument was waived for her failure to file a cross-appeal as
provided at 20 C.F.R. § 802.201(a)(2). It held that the argument was not waived. The
Board reasoned that, because Claimant was satisfied with the administrative law judge's
decision, "she was not required to cross-appeal in order to made arguments which were not
in support of (the ALJ's) reasoning but which supported the result reached by the administrative
law judge, i.e. an award of benefits based on findings of the existence of
pneumoconiosis arising out of coal mine employment and death due to pneumoconiosis."
The Board further held that the administrative law judge properly weighed
the medical evidence under § 718.202 of the regulations. Specifically, the ALJ separately
evaluated the x-ray evidence at § 718.202(a)(1) to find no evidence of pneumoconiosis but
he concluded that the medical opinion evidence at § 718.202(a)(4) did support a finding of
the disease. Employer had argued that, under § 718.202(a), "all relevant evidence
must be weighed together to determine whether claimant suffers from the disease," and it
cited to the Third Circuit's holding in this regard in Penn Allegheny Coal Co. v.
Williams, 114 F.3d 22 (3d Cir. 1997). The Board countered to note that Jones did
not arise within the Third Circuit such that the Williams decision was not controlling.
Moreover, it stated that the circuit court failed to distinguish between clinical and legal
pneumoconiosis. In this vein, the Board reasoned that legal pneumoconiosis "is a broader
category which is not dependent upon a determination of clinical pneumoconiosis, and the
absence of clinical pneumoconiosis does not necessarily influence a physician's diagnosis of
legal pneumoconiosis."
The Board then held that, it was within the administrative law judge's
discretion as the trier-of-fact, to accord greater weight to the miner's treating physician of 14
years and another physician who had treated the miner during his multiple hospitalizations over
the opinions of Drs. Fino, Zaldivar, and Morgan who never examined the miner and Dr. Renn,
who examined him only once.
With regard to the challenges to the administrative law judge's fee award,
the Board held that it was within his discretion to find "that all of the hours requested by
counsel for reviewing the file, traveling, organizing exhibits and preparing briefs were necessary
and reasonable." The Board further held that it was proper for the ALJ to award fees at
counsel's "customary hourly rate of $200 for black lung cases." In so holding, the
Board rejected Employer's argument that "an hourly rate of $175 would be appropriate and
more consistent with the rate obtained by the general legal community in the area of law"
as Employer's argument was deemed "insufficient to meet (its) burden of proving the rate
awarded was excessive or that the administrative law judge abused his discretion in this
regard."
[ establishing pneumoconiosis under 20 C.F.R. § 718.202(a)
]
By published decision in Stacy v. Cheyenne Coal Co., ___ B.L.R.
___, BRB No. 98-0670 BLA (Feb. 10, 1999), the Board upheld a finding that Claimant failed to
file a timely petition for modification. Although the record contained a November 1996 letter
from Claimant requesting that the district director respond to his December 1994 modification
petition, the administrative law judge concluded that "the DOL had no record of the
document until a copy" was attached to the November 1996 correspondence and that,
without any corroboration that the petition was received in December 1994, the administrative
law judge properly found that it was untimely. However, the Board further held that the
administrative law judge erred in adjudicating the claim under 20 C.F.R. § 725.309. In so
holding, the Board reasoned that Claimant's letter to the district director did not satisfy the
requirements of 20 C.F.R. §§ 725.305(b) and (d) which require that subsequent
claims be filed on a specific form and such claims are not "perfected" until the
specified form is filed. Because Claimant's request was not filed on the "prescribed
form," the Board concluded that "there was no claim before the administrative law
judge to adjudicate."
[ petition for modification; multiple claims ]
The unpublished decision of Collins v. Director, OWCP, BRB No.
98-0371 BLA (Nov. 27, 1998), is also reviewed for this digest because of the conflicting
holdings of the Board in the area of setting repayment schedules for overpayments. In this case,
the Board stated the following:
The administrative law judge has simply accepted claimant's assertion of an
ability to repay $50.00 per month; but, especially in light of claimant's $450.00
monthly surplus, the administrative law judge has failed to indicate why the
$50.00 per month repayment amount is any more viable than the $100.00 figure
arrived at by the district director or any other figure. Inasmuch as the
administrative law judge has failed to explain how he has arrived at the $50.00
figure, we hold that his determination violates the Administrative Procedure Act .
. ..
. . .
Accordingly, on remand the administrative law judge must fully
explain his basis for arriving at the $50.00 figure or, in the
alternative, must craft another repayment plan.
This appears to run contrary to the Board's holding in Keiffer v. Director, OWCP,
18 B.L.R. 1-35 (1993) wherein it concluded that the purpose of the formal hearing is to establish
the existence of a debt, "not how it will be paid." Indeed, the Board stated that
"[t]he administrative law judge's inquiry is merely whether claimant is in a financial
position to assume repayment of the debt created by the overpayment." It is noteworthy
that in another unpublished decision, Jennings v. Director, OWCP, BRB No. 97-1537
BLA (May 27, 1998), the Board cited to its Keiffer decision and concluded that the
administrative law judge did not have authority to determine a repayment schedule; rather, s/he is
limited to determining the amount of the overpayment and whether the overpayment should be
partially or totally waived.
[ setting repayment schedule in overpayment cases ]