OFFICE OF ADMINISTRATIVE LAW JUDGES
UNITED STATES DEPARTMENT OF LABOR
MONTHLY DIGEST # 121
March - April 1995
Benefits Review Board
In the aftermath of the Sixth Circuit's decision in
Sharondale, the Board reiterated that, for the sake of
consistency in decision-making, it would continue to apply its
standard for demonstrating a "material change in
conditions" as enunciated in Shupink which provides
that a "material change" is established where the newly
submitted evidence, if fully credited, could possibly change the
prior administrative result. Spese v. Peabody Coal Co.,
18 B.L.R. 1-47 (1995).
[ III - 91, duplicate claims under § 725.309 ]
In Cadle v. Director, OWCP, 19 B.L.R. 1-56 (1994),
Claimant was liable for an overpayment of $ 32,107.20, for which
she was not at fault and did not seek a waiver. She did,
however, request that the overpayment amount be reduced to
reflect the costs associated with her attorney's fees and medical
expenses as well as to account for an advance payment of $
5,000.00. The administrative law judge agreed and reduced the
overpayment amount by $ 12,688.11 to account for these items.
With regard to the attorney's fees, he based the overpayment
calculation "on the aggregate amount paid to claimant in
federal benefits less the aggregate amount paid by claimant in
attorney's fees, (and) reimbursed claimant dollar-for-dollar for
her legal fees."
The Board reversed upon noting the following facts: (1) the
district director paid interim benefits of $ 6,720.20 in a lump
sum for a period from February 1982 through April 1983, and
subsequent monthly payments of $ 457.40, and (2) the West
Virginia Coal Workers' Pneumoconiosis Fund awarded state benefits
on August 29, 1988 in a lump sum of $ 101,889.18 from February
1982 through September 1988, and monthly payments thereafter of $
1,285.41.
The Board held that Claimant's federal benefits would have
been entirely offset by the state benefits except during the
first ten months. The Board reduced the overpayment amount by $
4,433.20 (which constituted ten months of federal benefits) to $
27,674.00 on grounds that the lump sum state award should have
been "projected" into monthly payments. The Board
noted that, under § 725.535(b), the [C]laimant was entitled
only to the first ten months of federal benefits she received
while her projected state award was being used to pay attorney's
fees" as well as medical costs. Specifically, the Board
deferred to the district director's method of calculating the
overpayment which was:
[T]o credit all of claimant's monthly state award
toward claimant's legal and medical fees until such
time as claimant had been paid monthly state benefits
equal to the amount of attorney's fees payable in
claimant's state claim, thus delaying reduction of
claimant's federal monthly benefits until that
time.
The overpayment amount was further reduced by $ 5,000.00 to
account for the partial payment of the overpayment amount already
made by the claimant.
[ III - 79, overpayment/offset/lump sum awards ]
In Seals v. Glen Coal Co., ___ B.L.R. ___, BRB No.
92-1887 BLA (Apr. 25, 1995)(en banc), a medical treatment dispute
case, the Board held that the "claimant must establish that
his medical expenses were necessary to treat his pneumoconiosis
and ancillary pulmonary conditions and disability." To aid
a claimant in sustaining this burden, the Fourth Circuit, in
Doris Coal Co. v. Director, OWCP, 938 F.2d 492 (4th Cir.
1991), aff'g in part and rev'g in part Stiltner v. Doris Coal
Co., 14 B.L.R. 1-116 (1990) (en banc with Brown, J.,
dissenting, and McGranery, J., concurring and dissenting),
concluded that "when a miner receives treatment for a
pulmonary disorder, a presumption arises that the disorder was
caused or at least aggravated by the miner's pneumoconiosis,
making the employer liable for the medical costs."
Consequently, in Seals, which arose in the Fourth Circuit,
the Board held that a physician's opinion, wherein it was
concluded that the miner did not have occupational
pneumoconiosis, was "contrary to the spirit of the Act in
that a final determination of entitlement to medical benefits
precluded raising the basic issues of entitlement."
Rather, the Board noted that, under the Stiltner
presumption, the party opposing entitlement carries the burden of
establishing that the miner's pulmonary-related medical bills
were not for the treatment of his pneumoconiosis.
