RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act
Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 119
November - December 1994
A. Circuit courts of appeals
In Sharondale Corp. v. Ross , ___ F.3d ___, Case No. 93-3644 (6th Cir. Dec. 16, 1994), the Sixth Circuit declined to embrace either the Seventh Circuit's McNew standard or the standard set forth by the Board in Spece for finding a "material change in condition" under the duplicate claim provisions at 20 C.F.R. § 725.309. Rather, the court adopted the hybrid approach proposed by the Director to hold that:
[T]o assess whether a material change is established, the ALJ must consider all of the new evidence, favorable and unfavorable, and determine whether the miner has proven at least one of the elements of entitlement previously adjudicated against him. If the miner establishes the existence of that element, he has demonstrated, as a matter of law, a material change. Then the ALJ must consider whether all of the record evidence, including that submitted with the previous claims, supports a finding of entitlement to benefits.
The court reasoned that such an approach "[a]ffords a miner a second chance to show entitlement to benefits provided his condition has worsened" but that "entitlement is not without limits, however; a miner whose condition has worsened since the filing of an initial claim may be eligible for benefits but . . . no miner is entitled to benefits simply because his claim should have been granted."
[ III - 93, duplicate claims ]
In Sahara Coal Co. v. Fitts , ___ F.3d ___, Case No. 93-4005 (7th Cir. Nov. 8, 1994), the Seventh Circuit remanded a claim stating that "[t]o base a decision on which side produced more witnesses, and to include in the count of witnesses one whose opinion rested on a premise that was later discredited (diagnosis of pneumoconiosis based upon an x-ray that was later read by more qualified readers as negative), is not a rational method of decision-making."
[ IV - 90, numerical superiority ]
B. Benefits Review Board
In Kingery v. Hunt Branch Coal Co. , ___ B.L.R. ___, BRB No. 92-1418 BLA (Nov. 22, 1994), the Board reiterated that in determining whether a "change in conditions" has occurred on modification, "an administrative law judge is obligated to perform an independent assessment of the newly submitted evidence, considered in conjunction with previously submitted evidence, to determine if the weight of the new evidence is sufficient to establish at least one element of entitlement which defeated entitlement in the prior decision." Accordingly, where the claimant established pneumoconiosis by chest x-ray in the first claim, he could not establish a "change in conditions" by merely submitting additional positive x-ray evidence. Moreover, submission of evidence already in the record at the time the prior decision was rendered is insufficient to establish a "change in conditions." However, evidence generated after that decision may be properly considered on modification. Finally, the Board held that the administrative law judge should always review the record on modification to assess whether a mistake of fact was made in the prior decision.
[ III - 96, modification ]
In Branham v. Eastern Assoc. Coal Corp. , ___ B.L.R. ___, BRB No. 91-2179 BLA (Nov. 28, 1994), the Board held that it was proper to require that Employer reimburse Claimant $ 400.00 for obtaining a physician's deposition and reimburse Claimant's counsel $ 48.40 in mileage costs to attend two medical depositions. In so holding, the Board stated that "an expert need not testify at the administrative hearing in order for claimant to be reimbursed for the costs of obtaining a physician's opinion." With regard to the mileage costs of Claimant's counsel, the Board reasoned that such costs were "expenses necessary in establishing claimant's case."
[ XI - 23, mileage and costs of depositions reimbursed ]
By unpublished decision, in Adams v. Eastern Associated Coal Corp., BRB No. 93-0305 BLA (Jan. 28, 1994), the Board held that the administrative law judge exceeded his authority by requiring the Solicitor to provide a Claimant with legal assistance. Noting that there is no clearly expressed legislative intent to the contrary, the Board determined that the regulation at issue in this case, 20 C.F.R. § 725.422, affords the Solicitor the sole discretion to determine whether to provide legal assistance to Claimant. This decision, which was consolidated with Ferrell v. Betty Coal Co., BRB No. 93- 0408 BLA (Jan. 28, 1994) and Blankenship v. Shannon Pocahontas Coal Co. , BRB No. 93-0418 BLA (Jan. 28, 1994), resolves a conflict among the opinions of administrative law judges regarding the interpretation of § 725.422 of the regulations.
[ Solicitor as representative to claimant - § 725.422 ]