BRB No. 00-1146 BLA
ROLAND P. ALLEN )
(Surviving Child of SAMUEL P. ALLEN) )
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:08/30/2001
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Mollie W. Neal,
Administrative Law Judge, United States Department of Labor.
Roland P. Allen, Birmingham, Alabama, pro se.
Barry H. Joyner (Howard M. Radzely, Acting Solicitor of Labor; Donald S.
Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate
Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel for
Administrative Litigation and Legal Advice), Washington, D.C., for the
Director, Office of Workers' Compensation Programs, United States
Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant, without the assistance of counsel, appeals the Decision and Order
Denying Benefits (00-BLA-0039) of Administrative Law Judge Mollie W. Neal on a
survivor's claim filed pursuant to the provisions of Title IV of the Federal Coal
Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq.
(the Act).[1] This case is before the Board for
the third time.[2] The administrative law judge
found that claimant failed to establish any mistake in a determination of fact,
see 20 C.F.R. §725.310 (2000), in the prior findings: that claimant
failed to meet the dependency requirements for a surviving child of the miner
because, inter alia, he was married and that claimant failed to establish
that the miner's death was due to pneumoconiosis. Accordingly, benefits were
denied.
On appeal claimant contends that he has established entitlement to benefits.
The Director, Office of Workers' Compensation Programs (the Director), responds,
urging that the administrative law judge's Decision and Order Denying Benefits be
affirmed.
In an appeal filed by a claimant without the assistance of counsel, the Board
will consider the issue raised to be whether the Decision and Order below is
supported by substantial evidence, see Hodges v. BethEnergy Mines, Inc., 18
BLR 1-85 (1994); McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1985).
If the findings of fact and conclusions of law of the administrative law judge are
supported by substantial evidence, are rational, and are consistent with applicable
law, they are binding upon this Board and may not be disturbed. 33 U.S.C.
§921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Pursuant to Section 22 of the Longshore and Harbor Workers' Compensation Act
(Longshore Act), 33 U.S.C. §922, as incorporated into the Act by 30 U.S.C.
§932(a) and as implemented by 20 C.F.R. §725.310 (2000), see 20
C.F.R. §725.2(c), a party may request modification of a denial on the grounds
of a change in conditions or because of a mistake in a determination of fact. The
intended purpose of modification based on a mistake in fact is to vest the fact-finder "with broad discretion to correct mistakes of fact, whether demonstrated by
wholly new evidence, cumulative evidence, or merely further reflection on the
evidence initially submitted," see O'Keeffe v. Aerojet-General Shipyards,
Inc., 404 U.S. 254, 257 (1971); Director, OWCP v. Drummond Coal Co.
[Cornelius], 831 F.2d 240, 10 BLR 2-322 (11th Cir. 1987).
The administrative law judge found that because claimant testified that he was
married well before the miner's death and was still married, the evidence failed
to establish that a mistake in a determination of fact had been made when it was
determined that claimant failed to meet the dependency requirements for a
surviving child of the miner pursuant to Sections 725.221and 725.209 (2000) due,
in part, to his marital status. Decision and Order at 3-4. Although claimant
admits that he is married, he contends that it is enough that he is a child of the
miner and that he does not have to prove that he is unmarried or dependent in order
to establish his eligibility for benefits under the Act.
Claimant stated on his original application for benefits, filed on November
16, 1992, that he was married on November 19, 1970, and was still married,
Director's Exhibit 1. At the May, 1994, hearing before Judge Mosser, claimant
testified that he had been married for "about 22 to 24 years," prior to the miner's
death, and was still married and living with his wife, and was not living with the
miner when the miner died, see Director's Exhibit 16 at 13-14, 16.
On claimant's subsequent filing of a request for modification on May 30, 1997,
claimant again stated that he was married. Director's Exhibit 46. At the
subsequent February, 1998, hearing before Judge Tierney, claimant testified that
he was currently married and had been married for about twenty-five years,
Director's Exhibit 60 at 9. Finally, at the May 19, 2000, hearing before Judge
Neal, claimant again admitted that he was still married, see May, 2000,
Hearing Transcript at 12.
Contrary to claimant's contention, the Act provides that "benefits shall only
be paid to a child for so long as he meets the criteria for the term child'
contained in section 902(g) of this title." 30 U.S.C. §922(a)(3). Section
402(g) of the Act, 30 U.S.C. §902(g), defines the term "child" as a child or
a step-child who is:
unmarried; and
(2)(A) under eighteen years of age, or
(B)(i) under a disability as defined in section
423(d) of [the Social Security Act],
(ii) which began before the age specified in
section 402(d)(1)(B)(ii) of [the Social Security
Act], or, in the case of a student, before he
ceased to be a student; or
(C) a student.
30 U.S.C. §902(g). The implementing regulations set forth relationship and
dependency requirements. The administrative law judge properly found that claimant
meets the relationship requirement, as the son of the deceased miner, see
20 C.F.R. §725.220. The applicable dependency requirement provides that a
child is dependent upon a miner or surviving spouse if the child "is unmarried" and
is under eighteen years of age or is eighteen years of age or older and is either
disabled as defined under the Social Security Act, or is a student, see 20
C.F.R. §§725.209(a), 725.221. Thus, to be a dependent child, claimant
must be "unmarried," 30 U.S.C. §902(g); 20 C.F.R. §725.209(a); see
Sullenberger v. Director, OWCP, 22 BLR 1-54, 1-58 (2000).[3]
Consequently, inasmuch as the administrative law judge's finding that claimant
is married is supported by substantial evidence, the administrative law judge
correctly found that claimant does not meet the dependency criteria for the term
"child" contained in Section 402(g) of the Act, and therefore is not entitled to
benefits. See 30 U.S.C. §§902(g), 922(a)(3); 20 C.F.R.
§§725.209(a), 725.221; Sullenberger, supra. We affirm,
therefore, the administrative law judge's finding that claimant failed to establish
any mistake in a determination of fact, see 20 C.F.R. §725.310 (2000),
in the prior determination that claimant did not meet the dependency requirements
for a surviving child of the miner pursuant to Sections 725.221and 725.209 (2000)
because he was married as it is supported by substantial evidence and in accordance
with law. Inasmuch as we affirm the administrative law judge's finding that
claimant is not an eligible surviving child of the miner, we need not address the
administrative law judge's finding pursuant to Section 718.205 (2000).[4]
Accordingly, the Decision and Order Denying Benefits of the administrative law
judge is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1) The Department of Labor has amended the regulations implementing the Federal Coal Mine
Health and Safety Act of 1969, as amended. These regulations became effective on January 19, 2001, and are found at 65
Fed. Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts 718, 722, 725, and 726). All citations to the regulations,
unless otherwise noted, refer to the amended regulations.
Pursuant to a lawsuit challenging revisions to 47 of the regulations implementing the Act, the United States District
Court for the District of Columbia granted limited injunctive relief for the duration of the lawsuit, and stayed, inter
alia, all claims pending on appeal before the Board under the Act, except for those in which the Board, after briefing
by the parties to the claim, determined that the regulations at issue in the lawsuit would not affect the outcome of the case.
National Mining Ass'n v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9, 2001)(order granting preliminary injunction).
The Board subsequently issued an order requesting supplemental briefing in the instant case. On August 9, 2001, the
District Court issued its decision upholding the validity of the challenged regulations and dissolving the February 9, 2001
order granting the preliminary injunction. National Mining Ass'n v. Chao, Civ. No. 00-3086 (D.D.C. Aug. 9, 2001).
The court's decision renders moot those arguments made by the parties regarding the impact of the challenged
regulations.
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2) Claimant is a surviving child of the miner, Samuel P. Allen, who died on April 5, 1983,
Director's Exhibit 4. The miner had been awarded benefits under Part B by the Social Security Administration in January,
1970, and had been awarded medical benefits only by the Department of Labor in December, 1981, Director's Exhibits 13,
33, 65. Subsequent to the miner's death, claimant filed a survivor's claim for benefits in his own right on November 16,
1992, Director's Exhibit 1. In a Decision and Order issued on August 5, 1994, Administrative Law Judge Donald W.
Mosser found that, although claimant established that he was the surviving child of the miner pursuant to 20 C.F.R.
§725.220 (2000), claimant failed to meet the dependency requirements for a surviving child of the miner pursuant
to 20 C.F.R. §§725.221and 725.209 (2000) because, in part, he was married, Director's Exhibit 17.
Alternatively, Judge Mosser found that claimant failed to establish that the miner's death was due to pneumoconiosis
pursuant to 20 C.F.R. §718.205 (2000). Accordingly, benefits were denied.
Claimant appealed and the Board affirmed Judge Mosser's finding that claimant failed to establish dependency
pursuant to Sections 725.221 and 725.209 (2000), Director's Exhibit 27. Allen v. Director, OWCP, BRB No. 94-3798 BLA (Apr. 21, 1995)(unpub.). Claimant appealed the Board's Decision and Order to the United States Court of
Appeals for the Eleventh Circuit, within whose jurisdiction this case arises, who affirmed the administrative law judge's
finding that claimant was ineligible for benefits, in part, because he was married, Director's Exhibits 43, 45. Allen v.
Director, OWCP, No. 95-6357 (11th Circuit, Oct. 29, 1996)(unpub.). The Court also denied claimant's Petition for
Rehearing, Director's Exhibit 44. Allen v. Director, OWCP, No. 95-6357 (11th Circuit, Dec. 30, 1996)(unpub.).
Claimant filed a timely request for modification on May 30, 1997, Director's Exhibit 46. In a Decision and Order
issued on July 29, 1998, Administrative Law Judge Gerald M. Tierney found that claimant failed to establish any mistake
in a determination of fact in the prior findings: that claimant failed to meet the dependency requirements for a surviving
child of the miner pursuant to Sections 725.221and 725.209 (2000) because, inter alia, he was married and that
claimant failed to establish that the miner's death was due to pneumoconiosis pursuant to Section 718.205 (2000), Director's
Exhibit 66. Accordingly, benefits were denied.
Claimant appealed on September 22, 1998, Director's Exhibit 67, but the Board dismissed claimant's appeal as
untimely filed, Director's Exhibit 68. Allen v. Director, OWCP, BRB No. 98-1651 BLA (Oct. 27, 1998)(unpub.
order). The Board also denied claimant's request for reconsideration, Director's Exhibit 71. Allen v. Director,
OWCP, BRB No. 98-1651 BLA (Nov. 30, 1998)(unpub. order).
Claimant filed a timely request for modification of Judge Tierney's Decision and Order denying benefits on June
14, 1999, Director's Exhibit 72, and the Department of Labor subsequently considered claimant's untimely appeal of Judge
Tierney's Decision and Order denying benefits as a request for modification. Director's Exhibits 67, 73.
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3) Although the implementing regulations governing the dependency of surviving children were
revised, in part, see 65 Fed. Reg. 79963, 79967 (Dec. 20, 2000), the revisions did not alter the requirement that the
surviving child be unmarried, see 30 U.S.C. §902(g); 20 C.F.R. §725.209(a)(1).
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4) The comments accompanying the revised 20 C.F.R. §725.209(a)(1) refer to the comments
accompanying the revised regulation at 20 C.F.R. §725.219 regarding the effect of marriage on a child's dependency
status under Section 725.209(a)(1), see 65 Fed. Reg. 79963 (Dec. 20, 2000). The comments accompanying the
revised regulation at 20 C.F.R. §725.219, regarding the effect of marriage on a child's dependency status under
Section 725.209(a)(1), state that "[t]he literal language of the statute [30 U.S.C. §902(g)] does not preclude a child's
eligibility for all time based upon the existence of marriage." Rather, "[u]pon cessation of the marital relationship, ... the
child again is unmarried,' which complies with the statutory requirement. Assuming all other conditions for eligibility are
met, an unmarried' child retains his or her status as a child' under the plain language of the statute not withstanding the
occurrence of the marriage." See 65 Fed. Reg. 79966 (Dec. 20, 2000). Thus, as the comments accompanying the
revised regulation at 20 C.F.R. §725.309 state, the revised Section 725.309 "allow[s] a miner's survivor to litigate
a second claim where one of the grounds on which the first claim was denied, e.g., that the survivor was married,
is subject to change, see 65 Fed. Reg. 79973 (Dec. 20, 2000). Consequently, the revised regulation at 20 C.F.R.
§725.309(d)(3), applicable to subsequent claims filed on or after January 19, 2001, see 20 C.F.R.
§725.2(c), specifically provides that "[a] subsequent claim filed by a surviving ... child ... shall be denied unless the
applicable conditions of entitlement in such claim include at least one condition unrelated to the miner's condition at the
time of his death." 20 C.F.R. §725.309(d)(3).
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NOTE: This is an UNPUBLISHED BLA Document.
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