Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 135
March-April 1998
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
A. Circuit Courts of Appeal
In Lane Hollow Coal Co. v.
Director, OWCP [Lockhart], ___ F.3d ___, Case No. 96-2819 (4th Cir. Mar. 3, 1998),
the Fourth Circuit held that Employer was dismissed from the case and relieved of liability for
the payment of benefits where "the extraordinary delay in notifying [Employer] of its
potential liability deprived it of a meaningful opportunity to defend itself in violation of the Due
Process Clause of the Fifth Amendment." Indeed, the court set forth the lengthy
procedural history of the claim and found that "[Employer] was finally notified of the
claim on April 6, 1992, seventeen years after notice could have been given and eleven years after
the regulations command that it be given." The court further noted the following:
The problem here is not so much that [Claimant] died before notice to
[Employer], but rather that he died many years after such notice could
and should have been given. The government's grossly inefficient handling of the
matter and not the random timing of death denied [Employer] the opportunity
to examine [Claimant].
(emphasis in original).
Turning to the merits of the claim, the court upheld an award of benefits
under 20 C.F.R. Part 727. Initially, the court noted that pneumoconiosis is "progressive
and irreversible" such that it is proper to accord greater weight to later positive x-ray
studies over earlier negative studies. It further stated that, generally, "later evidence is
more likely to show the miner's current condition" where it is consistent in demonstrating a
worsening of the miner's condition.
The court then reiterated that, under § 727.203(b)(3), the party
opposing entitlement must "rule out" the causal nexus between Claimant's total
disability and his coal mine employment. In this vein, the court concluded that "[i]n cases
in which the combined effects of several diseases disable the miner, the employer obviously
cannot meet its burden of proof by focusing solely on the disabling potential of the miner's
pneumoconiosis." Rather, the court held that Employer must prove that the miner's
"primary condition, whether it be emphysema or some other pulmonary disease, was not
aggravated to the point of total disability by prolonged exposure to coal dust." It then
stated that "[d]isputing the clinical accuracy of the law is not rebuttal" and noted that
it is error for a physician to conclude that the miner has no pulmonary impairment related to his
coal mine employment "because simple pneumoconiosis does not generally cause any
pulmonary impairment." The court concluded that this position is contrary to the
regulations.
The court found that (b)(3) rebuttal is accomplished either by
demonstrating that the miner has no respiratory or pulmonary impairment of any kind or that the
evidence establishes that his impairment is attributable "solely to sources other than coal
mine employment." The court concluded that "[t]here is a critical difference
between evidence of no impairment, which can, if credited, rebut the interim
presumption, and no evidence of impairment, which cannot." (emphasis in
original).
[ due process of law; rebuttal under § 727.203(b)(3) ]
In Milburn Colliery Co. v.
Director, OWCP [Hicks], ___ F.3d ___, Case No. 96-2438 (4th Mar. 6, 1998), the court
reviewed the blood gas study of evidence and found that "[o]ut of a total of nine tests, the
five initial tests produced qualifying results, and the four later tests did not." It noted that,
in previous decisions, it has rejected the " later is better'" approach to weighing
conflicting x-ray evidence but that, in this case, "the parties conceded at oral argument that
because pneumoconiosis is a progressive disease, later nonqualifying blood gas studies are
inconsistent with coal workers' pneumoconiosis . . .." The court concluded that it was error
for the administrative law judge to credit an earlier qualifying study solely on the grounds that it
was "validated" by a Department of Labor physician. Specifically, the court stated
that the physician "merely checked a box verifying that the test was technically
acceptable" and "provided no reasons for his opinion" such that "his
validation lent little additional persuasive authority to (the earlier study)." The court
concluded that the administrative law judge "failed to consider . . . testimony that obesity
could affect the blood gas studies, causing the studies to be more likely to qualify; nor did the
ALJ address the potential effect of (Claimant's) heart disease and intervening coronary artery
surgery on the tests."
Further, the court held that "[w]hile relevant to the issue of whether
there is a totally disabling respiratory impairment, a miner's own statements about his history of
coal mine employment or symptoms of pneumoconiosis are not conclusive in resolving
conflicting medical opinion evidence." The court then stated that "the length of a
miner's coal mine employment does not compel the conclusion that the miner's disability was
solely respiratory" and the "mere presence of pneumoconiosis (by x-ray) is not
synonymous with a totally disabling respiratory condition."
Finally, the court concluded that the administrative law judge erred in
stating that, even if Claimant's cardiac condition was the primary cause of his total disability, it
was not the exclusive cause. Citing to Jewell Smokeless Coal Corp. v. Street, 42 F.3d
241, 243 (4th Cir. 1994), the court "rejected the argument that [a] miner need only
establish that he has a total disability, which may be due to pneumoconiosis in combination with
nonrespiratory and nonpulmonary impairments.'" Thus, the court held that, even if it is
determined that Claimant suffers from a totally disabling respiratory condition, he "will not
be eligible for benefits if he would have been totally disabled to the same degree because of his
other health problems."
In weighing the conflicting evidence on remand, the court instructed that
physicians' qualifications be considered. Moreover, considering the numerous legal errors made
by the original administrative law judge, the court held that "this claim requires a fresh
look at the evidence, unprejudiced by the various outcomes of the ALJ and Board's orders
below" and directed that the claim be assigned to a new administrative law judge who
would have "discretion to reopen the record."
[ blood gas studies "later evidence" rule; establishing
total disability; remand to a new ALJ ]
In Peabody Coal Co. v. Director,
OWCP [Ferguson], ___ F.3d ___, Case No. 97-3050 (6th Cir. Apr. 1, 1998), the court
held that the administrative law judge erred in failing to consider evidence submitted by
Employer on remand regarding rebuttal under 20 C.F.R. § 727.203(b)(3). Specifically, the
administrative law judge declined to reopen the record and reconsider his findings under
subsection (b)(3) on remand because the Board "explicitly affirmed (his) finding that there
was no rebuttal under § 727.203(b)(3) of the regulations." The Board agreed. The
court, however, held otherwise and reasoned that the change in standard under subsection (b)(2)
after the hearing, whereby Employer had to establish that the miner was not totally disabled for
any reason, shifted emphasis to the subsection (b)(3) rebuttal of ruling out the causal
nexus between the miner's total disability and his coal mine employment. Indeed, the court noted
that subsection (b)(3) became the less stringent rebuttal provision of the two subsections. The
court then stated the following:
In the case at hand, Peabody presented new evidence as to (b)(2) and (b)(3),
however, the ALJ refused to consider the new evidence as to (b)(3), and thus, only
considered (b)(2) rebuttal. This was error. It is clear that Peabody was entitled to
reconsideration as to both (b)(2) and (b)(3). (footnote omitted). Thus, in accord
with (Cal-Glo Coal Co. v. Yeager, 104 F.3d 827, 832 (6th Cir. 1997), the
Board committed a manifest injustice by denying Peabody full consideration.
Slip op. at 4
[ reopening the record on remand; manifest injustice ]
B. Benefits Review Board
In Branham v. Bethenergy Mines, Inc., ___ B.L.R. ___, BRB No.
97-0334 BLA (Mar. 19, 1998) (J. McGranery, dissenting), Claimant was initially awarded
benefits by an ALJ whose decision was affirmed by the Board but, by petition for modification
filed by Employer, a second ALJ concluded that a "mistake in a determination of
fact" had been made and Claimant was not entitled to benefits. The Board rejected
Claimant's argument that Employer's modification request constituted an improper collateral
attack on the original ALJ's decision. The Board further held that it was proper for the second
ALJ to reopen the record for the submission of new evidence to state that "[o]ne could
hardly find a better reason for rendering justice than that it would be unjust or unfair to require an
employer to pay benefits to a miner who does not meet the requirements of the Act." In a
dissenting opinion, Judge McGranery stated that modification should not become an avenue for
Employer to retry its case and make " a better showing on the second attempt.'" She
noted that Claimant prevailed by a preponderance of the evidence but "Employer, with its
superior resources, shifted the balance" on modification. Judge McGranery therefore
concluded that the interests of justice had not been served by reopening the case on modification.