Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 117
July - August 1994
A. Circuit courts of appeals
Freeman United Coal Mining Co. v. Foster, ___ F.3d ___,
Case No. 93-2923 (7th Cir. July 18, 1994).
In a case where the miner invoked the presumption of total
disability due to pneumoconiosis, a Seventh Circuit panel held
that, contrary to the existing standard of rebuttal under 20
C.F.R. § 727.203(b)(2), such rebuttal is permitted where
the miner is totally disabled due to any impairment, such
as one of a non-pulmonary or non-respiratory nature.
Specifically, a totally disabling impairment which is wholly
unrelated to black lung disease is insufficient to preclude
(b)(2) rebuttal. In so holding, the court stated the
following:
Foster worked until his back injury. The medical
records submitted at the first hearing led the ALJ to
find that Foster had no pulmonary impairment of any
kind. Additional medical records submitted after
remand led to the conclusion that Foster suffer from
chronic bronchitis and emphysema, but the ALJ did not
find that these conditions would be disabling
independent of the back injury. Foster suffered a back
injury and is entitled to workers' compensation plus
any other medical benefits his employer contractually
agreed to supply. He is not disabled by pneumoconiosis
and is not entitled to benefits under the Black Lung
Benefits Act.
Slip op. at 7. The court concluded that the rebuttal provisions
at § 727.203(b) be read "as a whole" to
"identify and compensate 'total disability due to
pneumoconiosis.'" Slip op. at 6.
[ VIII - 37, rebuttal under § 727.203(b)(2) ]
Consolidation Coal v. Worrell, ___ F.3d ___, Case No. 93-
3277 (6th Cir. June 22, 1994).
Where a claimant files a second or "new" claim
within one year of a prior denial it is to be treated as a
request for modification. The court rejected the employer's
argument that a claimant must "specifically state[] grounds
for modification -- as, for example, by identifying a mistake of
fact or new evidence" in order to have the second claim
treated as a request for modification. Slip op. at 5. Neither
§ 22 of the Longshore Act nor 20 C.F.R. § 725.310
requires a claimant to plead such a ground.
[ III - 96, 99, format of modification request]
Grigg v. Director, OWCP, ___ F.3d ___, Case Nos. 92-1591 and
92-2462 (4th Cir. July 1, 1994).
The court reiterated that, under § 727.203(b)(3), the
party opposing entitlement must "rule out" the causal
nexus between the miner's total disability and his or her coal mine
employment. In seeking to establish (b)(3) rebuttal through a
finding of "no impairment," the court noted that such may
occur "only where the relevant medical opinion states, without
equivocation, that the miner suffers no respiratory or
pulmonary impairment of any kind. Moreover, rebuttal
under (b)(3) based upon a finding of no respiratory or pulmonary
impairment is permitted only if the presumption was invoked under
(a)(1) because (a)(4) invocation "presupposes the evidence
shows a totally disabling respiratory or pulmonary
impairment." The court specifically declined to consider
whether the same principal would be applicable if the interim
presumption had been invoked by ventilatory or blood gas studies.
With regard to treating physicians, the court held that, even where
a treating physician "is not as highly qualified as the other
physicians whose opinions appear in this record, his status as a
treating physician entitles his opinion to great, though not
necessarily dispositive, weight."
[ VIII - 53, rebuttal under § 727.203(b)(3); IV - 85,
treating physician ]
Bethenergy Mines, Inc. v. Director, OWCP, ___ F.3d ___, Case
Nos. 93-3428 through 93-3463 (3d Cir. Aug. 15, 1994).
The Third Circuit followed the Sixth Circuit's decision in
Vahalik v. Youghiogheny & Ohio Coal Co., 970 F.2d 161
(6th Cir. 1992) as well as that of the Benefits Review Board in
Brown v. Sea "B" Mining Co., 17 B.L.R. 1-115
(1993) to hold that neither the administrative law judge nor the
Board has jurisdiction to decide interest assessment issues in
medical benefits only claims.
