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RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act
Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 139
November 1998 - December 1998
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
Circuit Courts of Appeal
In Lovilia Coal Co. v. Williams , ___ F.3d ___, Case No. 96-2980 (7th Cir. 1998), aff'g., 20 B.L.R. 1-58 (1996), the Seventh Circuit held that Employer and its insurer were liable for the payment of benefits to the miner. The miner was a joint owner of the now bankrupt coal mine which did not pay for coverage of the owners under the insurance policies created between the insurer and Employer for its employees. Despite the fact that Employer did not pay a premium for coverage of the owners, the circuit court nevertheless held the insurer to be liable for the payment of benefits. In support of its holding, the court noted the following:
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The petitioners contend that the BLBA does not require an insurer to pay benefits
to a mine owner who has opted not to purchase workmen's compensation
insurance for himself, and has thus not paid any premiums, but has paid the
necessary premiums for his employees. We disagree. The BLBA and its
regulations require that every coal operator's contract of insurance contain
provisions agreeing to cover fully all of the coal operator's liabilities under the
BLBA. The insurance contract between Bituminous and Lovilia is in conformity
with these requirements, and specifically provides coverage for all compensation
and other benefits' required of Lovilia under the BLBA.
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. . . - [T]he law specifically requires Bituminous to pay benefits to all insured miners,' regardless of whether or not insurance premiums have been paid. As discussed above, § 933 of the BLBA requires coal operators to insure payments of benefits.
The court emphasized that "[w]hether Bituminous charged an appropriate premium is not relevant to whether the BLBA imposed liability on Lovilia" and, in turn, whether Bituminous was required to pay benefits to the owner/miner.
[ responsible operator/carrier ]
In Broyles v. Director, OWCP , ___ F.3d ___, Case No. 97-9559 (10th Cir. 1998), the Tenth Circuit held that a survivor's U.S. circuit court appeal must be filed in the jurisdiction where the miner's coal mine employment, and therefore his harmful exposure to coal dust, occurred. The court stated that, based upon the record before it, the miner's "only exposure to coal dust occurred in the Seventh Circuit" such that the case would be transferred to that court for adjudication pursuant to 28 U.S.C. § 1631.
[ jurisdiction ]
In Richardson v. Director, OWCP , 94 F.3d 164 (4th Cir. 1996), the Director stipulated to the existence of coal workers' pneumoconiosis with regard to the living miner's claim. The court held that it was error, therefore, for the ALJ to find that the record did not support a finding of the disease in the survivor's claim. The court further stated that the stipulation was binding even though presence of the disease was not "manifest from the medical records." The court then remanded the case to the ALJ for a determination of whether coal workers' pneumoconiosis hastened the miner's death.
[ stipulations, effect of ]
In Old Ben Coal Co. v. Scott , ___ F.3d ___, Case No. 96-3554 (7th Cir. 1998), the Seventh Circuit held that it was proper for the ALJ to accord greater weight to the more recent x-ray studies submitted by the survivor with her timely petition for modification. Employer argued that the ALJ erred in crediting the more recent x-ray studies of record based on the " mythology'" that pneumoconiosis is a progressive disease. In rejecting Employer's position, the court stated the following:
- We have held . . . that the etiology of this disease is a question of legislative fact, . . . so that the Department of Labor's view may be upset only by medical evidence of the kind that would invalidate a regulation. Old Ben has not adduced evidence on this issue, so we accept the administrative approach. (citations omitted). Mine operators must put up or shut up on this issue.
[ later evidence rule ]
In Caney Creek Coal Co. v. Satterfield , 150 F.3d 568 (6th Cir. 1998), the court held that liability for the payment of benefits did not transfer from Employer to the Black Lung Disability Trust Fund because Claimant failed to elect review of his initial claim which was filed on in June of 1973. The court noted that computer records at the Social Security Administration indicated that an election card was mailed to the miner at his correct address which raises a rebuttable presumption that the election card was received and, by law, the miner had six months in which to submit the election card or an " equivalent document.'" Testimony by the miner's wife that she did not recall receiving the election card was, according to the court, insufficient to rebut the presumption. Moreover, the court held that the miner's filing of a Part C claim two months after the election card was mailed to him did not serve to support a transfer of liability. The court noted that the Department of Labor had specifically rejected such an argument in the promulgation of its regulations.
[ transfer of liability ]