Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 125
May 1996 - August 1996
A. Circuit Courts
In Stiltner v. Island
Creek Coal Co., 86 F.3d 337 (4th Cir. 1996), a panel of
the Fourth Circuit held that a physician's opinion should not be
discredited if he merely states that a miner "likely"
would have exhibited a restrictive impairment in addition to
chronic obstructive pulmonary disease. This is in apparent
conflict with the decision of another panel of the court in Warth v. Southern Ohio Coal
Co., 60 F.3d 173 (4th Cir. 1995) wherein the panel held
that a physician's opinion may be discredited if it is based upon
the assumption that coal dust exposure does not produce an
obstructive impairment. A petition for rehearing en banc in
Stiltner is currently pending before the court.
[ obstructive v. restrictive impairment ]
In Keating v. Director,
OWCP, 71 F.3d 1118 (3d Cir. 1995), the court held that,
on modification, "the [ALJ] must review all evidence of
record - any new evidence submitted in support of modification as
well as the evidence previously of record - and 'further reflect'
on whether any mistakes [of] fact were made in the previous
adjudication of the case."
[ modification under § 725.310; scope of
review ]
B. Benefits Review Board
In Croucher v. Director, OWCP, ___ B.L.R. ___, BRB
No. 94-2238 BLA (Aug. 29, 1996)(en banc), a copy of which is
attached, the Board upheld an administrative law judge's method
of calculating the length of Claimant's coal mine employment.
Specifically, the Board concluded that, based upon the miner's
social security records as the most reliable evidence of his
employment, the judge properly counted only those quarters
wherein the miner earned in excess of $50 per quarter from 1937
through 1946. Further, the Board held that it was proper for the
judge to credit the testimony of Claimant's wife to determine the
amount of coal mine employment prior to 1937.
The Board rejected Claimant's argument that his length of
coal mine employment must be determined using the 125-day rule
set forth at § 718.301(b) stating that this provision
relates to identification of the proper responsible operator, not
the actual length of a miner's employment as is required under
§ 725.493. The Board noted the following:
[T]he 125 day provision set out at Section
725.493(b) may be applicable once the threshold
requirement that the miner be employed for at
least one year, or partial periods totalling one
year, is satisfied. (citation omitted). Once
that requirement is satisfied, employer is
provided an opportunity to establish that the
miner's employment was not regular by proving that
the miner has not worked for employer for a period
of at least 125 working days. Thus, the board has
held that a mere showing of 125 days of coal mine
employment does not, in and of itself, establish
one year of coal mine employment under 20 C.F.R.
§ 725.493. (citation omitted).
In so holding, the Board noted its disagreement in this regard
with the Seventh and Eighth Circuits in Landes v. Director,
OWCP, 997 F.2d (7th Cir. 1993) and Yauk v. Director,
OWCP, 912 F.2d 192 (8th Cir. 1989) to state that application
of the 125 day rule to determine the miner's length of coal mine
employment results in miners receiving "credit for coal mine
employment during periods of time where there is no evidence to
support any coal mine employment whatsoever."
In Cole v. East Kentucky Collieries, ___ B.L.R. ___,
Case No. 94-0398 BLA (June 27, 1996), the Board held that:
[A] finding of evidentiary equipoise under the
discredited true doubt principle does not
automatically require a finding of insufficient
evidence under a preponderance of the evidence
standard. Rather, the administrative law judge as
fact-finder must determine whether, under this
standard, claimant has met his burden of proof
pursuant to Section 7(c) of the Administrative
Procedure Act . . ..
The Board did not elaborate further on this holding. The Board
also adopted the Fourth Circuit's decision in Director, OWCP
v. Trace Fork Coal Co. [Matney], 67 F.3d 503 (4th Cir. 1995),
in designating a responsible operator, to state that the language
of "Section 725.493(a)(4) does not preclude from
responsibility prior operators who are not also successor
operators."
[ weighing medical evidence formerly found in
equipoise; Board adopts Matney to hold prior and successor
operators liable ]
In Williams v. Lovilia Coal Co., ___ B.L.R. ___, BRB
No. 94-3703 BLA (June 14, 1996), the Board held that a miner's
status as a partner of the responsible operator did not
"affect his eligibility for benefits based on his work for
that concern" and Employer's "status as the responsible
operator does not turn on (the miner's) partnership
agreement." Citing to the Act, which lists partnerships as
entities which may be held liable for benefits, as well as
Federal Rule of Civil Procedure 17(b)(1), which provides that a
partnership may be sued to enforce a substantive right against
it, the Board concluded that "a partnership which operates a
coal mine . . . is properly named as the responsible operator
under the firm name." The Board further noted that
"there is no option in (the Act) for a partner or self-employed person to opt out of coverage
for qualifying coal mine
employment."
[ partnership as a responsible operator ]
In Blair v. R&E Coal Co., 20 B.L.R. 1-__, BRB No. 88-1054 BLA (Apr. 9, 1996), the
Board held, on reconsideration, that
benefits may be augmented to the survivor of a miner who adopted
a child after the miner's death. In so holding, the Board
concluded that the "relationship test" was satisfied
upon legal adoption of the child and that, because the child is
unmarried and under 18 years of age, she also satisfies the
"dependency test."
[ augmentation of benefits; adopted child ]
In Branham v. Bethenergy Mines, Inc., 20 B.L.R. 1-27
(1996), the Board vacated an administrative law judge's denial of
Employer's petition for modification to state the following:
[A]n administrative law judge may not invoke the
remedial nature of the BLBA to conclude, as a
matter of law, that modification on behalf of a
party opposing entitlement could never render
justice under the Act.
. . .
Section 22 accords both a claimant and a party
respondent access to the means by which an award
or denial of a compensation claim may be
reopened.
The Board reiterated that modification may be based upon new
evidence or further reflection upon the evidence already
submitted.
[ modification by employer under § 725.310
]
By Decision and Order on Reconsideration in Reigh
v. Director, OWCP, ___ B.L.R. ___, BRB No. 92-1380 BLA (June
12, 1996), the Board held that the Act "mandates a result
whereby a (surviving) party filing a Part C claim be able to
avail himself of derivative entitlement from a previous award of
benefits under a Part B claim." However, where Claimant,
the deceased miner's daughter, had been "married, divorced,
remarried and subsequently widowed," she lost her status as
an unmarried dependent child of the miner because, as noted by
the Board, "a surviving child of the beneficiary cannot
revive her status as an unmarried dependent of her parents upon
the death of her husband." Citing to Third Circuit
precedent, which had appellate jurisdiction over the case, the
Board stated that "a dependent child's eligibility, once
lost, does not reemerge upon subsequent events resulting in the
child satisfying conditions of dependency . . .."
[ survivor's benefits; dependency ]
By Decision and Order on Reconsideration in Carson
v. Westmoreland Coal Co., ___ B.L.R. ___, BRB No. 93-0459 BLA
(Aug. 26, 1996), mod. on recon., 19 B.L.R. 1-16 (1994),
the Board concluded that its earlier holding that:
The disabling loss of lung function due to
extrinsic factors, e.g., loss of muscle
function due to stroke, does not constitute
respiratory or pulmonary disability pursuant to
(20 C.F.R. § 718.204(c))
was in error and the Board struck this conclusion from its
earlier decision.
[ consideration of extrinsic factors under §
718.204(c) ]