BRB Nos. 98-0986 BLA
and 98-0986 BLA-A
DELPHIA PRATT )
(Widow of PEARL PRATT) )
)
Claimant-Petitioner )
Cross-Respondent )
)
v. )
)
DIAMOND MAY COAL COMPANY )
)
and )
)
KENTUCKY COAL PRODUCERS ) DATE ISSUED:08/18/1999 8/18/99
)
Employer/Carrier- )
Respondents )
)
RAY COAL COMPANY ) )
and )
)
SUN COAL COMPANY )
)
Employer/Carrier- )
Respondents )
Cross-Petitioners )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeals of the Decision and Order Denying Benefits on Miner's Claim and
Denying Benefits on Widow's Claim of Thomas F. Phalen, Jr.,
Administrative Law Judge, United States Department of Labor.
Delphia Pratt, Viper, Kentucky, pro se.
Denise M. Davidson (Barret, Haynes, May, Carter & Roark, P.S.C.),
Hazard, Kentucky, for Diamond May Coal Company.
Ronald E. Gilbertson (Kilcullen, Wilson and Kilcullen Chartered),
Washington, D.C., for Ray Coal Company and Sun Coal Company.
Rodger Pitcairn (Henry L. Solano, 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, the United States Department of
Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant,[1] representing herself, appeals,
and Ray Coal Company cross-appeals, the Decision and Order Denying Benefits on
Miner's Claim and Denying Benefits on Widow's Claim (97-BLA-1337) of Administrative
Law Judge Thomas F. Phalen, Jr., on claims 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). This case involves a duplicate miner's
claim filed on November 5, 1992, and a survivor's claim filed on November 3,
1994.[2] The district director denied the miner's
claim on April 13, 1993 on grounds that the miner failed to establish any of the
elements of entitlement under 20 C.F.R. Part 718. Director's Exhibit 22. The
miner requested modification of the denial of benefits in the miner's claim on June
30, 1993. Director's Exhibit 23. The district director again denied the claim on
August 17, 1993 for the same reasons that the claim was previously denied.
Id. On October 15, 1993, the miner indicated that he intended to file
additional evidence in support of modification, having filed with the district
director a request for an extension of time to do so. Director's Exhibit 31.
Before any further action was taken, however, the miner died on October 30, 1994.
Director's Exhibits 3, 14. Claimant filed a survivor's claim soon thereafter, on
November 3, 1994. Director's Exhibit 31. The district director denied the
survivor's claim on March 22, 1995 for claimant's failure to establish that the
miner had pneumoconiosis or that the disease caused the miner's death. Director's
Exhibit 25. Also on March 22, 1995, the district director denied modification of
the denial of benefits in the miner's claim. Director's Exhibit 24. The
consolidated claims were transferred to the Office of Administrative Law Judges on
June 2, 1997, Director's Exhibit 115, and assigned to the administrative law judge,
who held a hearing on December 3, 1997.
In his Decision and Order, the administrative law judge credited the miner
with nineteen years of coal mine employment based upon the stipulation of the
parties at the hearing. The administrative law judge found that Diamond May Coal
Company (Diamond May) was properly designated as the responsible operator in this
case, and that Ray Coal Company (Ray Coal) must be retained as a potentially liable
secondary operator. Regarding the request for modification in the duplicate
miner's claim, the administrative law judge found that the evidence submitted since
April 13, 1993, i.e., when the district director denied the miner's initial
request for modification of the denial of the 1992 duplicate miner's claim, was
insufficient to establish that the miner suffered from pneumoconiosis pursuant to
20 C.F.R. §718.202(a)(1)-(4) and was totally disabled pursuant to 20 C.F.R.
§718.204(c)(1)-(4). The administrative law judge determined that, therefore,
claimant did not establish a change in conditions pursuant to 20 C.F.R.
§725.310. The administrative law judge stated that he considered also the
previously submitted evidence, and that this evidence was likewise insufficient to
establish the existence of pneumoconiosis under Section 718.202(a)(1)-(4) and total
disability under Section 718.204(c)(1)-(4). The administrative law judge found
that, therefore, claimant failed to establish a mistake in a determination of fact
under Section 725.310. Finding that claimant failed to establish grounds for
modification, the administrative law judge consequently denied benefits in the
miner's duplicate claim. With regard to the survivor's claim, the administrative
law judge found that the evidence of record was insufficient to establish the
existence of pneumoconiosis under Section 718.202(a). The administrative law judge
also found that there was no evidence in the record supporting a finding that the
miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).
Consequently, the administrative law judge found that benefits were precluded in
the survivor's claim. On appeal, claimant generally contends that the
administrative law judge erred in denying benefits. Diamond May responds in
support of the administrative law judge's decision denying benefits. Ray Coal has
filed a cross-appeal contending that the administrative law judge erred in
retaining it as a named party in this case potentially secondarily liable for
benefits. The Director, Office of Workers' Compensation Programs (the Director),
has filed a letter contending that Ray Coal and its carrier, Sun Coal Company (Sun
Coal), should be dismissed from the instant case. The Director indicates that he
does not otherwise intend to participate in this appeal.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue to be whether the Decision and Order below is supported by
substantial evidence. Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must
affirm the findings of the administrative law judge if they are supported by
substantial evidence, are rational, and are in accordance with applicable law. 33
U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v.
Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits under Part 718 in a living
miner's claim, a claimant must establish the existence of pneumoconiosis, that the
pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis is
totally disabling. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204.
Failure to establish any one of these elements precludes entitlement. Trent v.
Director, OWCP, 11 BLR 1-26 (1987); Gee v. W.G. Moore and Sons, 9 BLR
1-4 (1986)(en banc); Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en
banc).
In addressing the issue of pneumoconiosis when considering the miner's claim,
the administrative law judge first weighed all of the newly submitted x-ray
evidence pursuant to Section 718.202(a)(1), and found that it was insufficient to
establish that the miner suffered from the disease. Decision and Order at 14-15.
The administrative law judge stated that the new x-rays were all read negative for
pneumoconiosis except for Dr. De Ponte's positive reading of the October 12, 1993
film. Decision and Order at 14; Director's Exhibit 108. The administrative law
judge permissibly found that the numerous readings of no pneumoconiosis by several
B readers and Board-certified radiologists substantially outweighed the one
positive reading by Dr. De Ponte. See Staton v. Norfolk & Western Railroad
Co., 65 F.3d 55, 19 BLR 2-271 (6th Cir. 1995); Woodward v. Director,
OWCP, 991 F.2d 321, 17 BLR 2-77 (6th Cir. 1993); Decision and Order at 15. The
administrative law judge also properly found that the x-rays submitted prior to the
most recent denial were almost consistently read as negative. Id. Inasmuch
as substantial evidence supports the administrative law judge's finding,[3] we affirm the administrative law judge's finding
that claimant failed to establish that the miner suffered from pneumoconiosis
pursuant to Section 718.202(a)(1). See Staton, supra; Woodward, supra.
In addressing whether claimant established the existence of pneumoconiosis
pursuant to Section 718.202(a)(2), the administrative law judge correctly stated
that the record contains the results of two biopsies, but that an autopsy was not
performed. Decision and Order at 15. The administrative law judge correctly found
that Dr. McManis's report of the November 19, 1993 biopsy could not support a
finding of pneumoconiosis because Dr. McManis simply diagnosed clear cell
adenocarcinoma. 20 C.F.R. §§718.201, 718.202(a)(2); Decision and Order
at 15; Director's Exhibit 95. The administrative law judge further properly
determined that Dr. Boswell's finding that the biopsy he conducted on October 28,
1993 showed a "marked increase in...peri vascular anthracotic pigment with slight
fibrosis" could not support a finding of pneumoconiosis. See 20 C.F.R.
§§718.201, 718.202(a)(2); Decision and Order at 15; Director's Exhibit
82. We, therefore, affirm the administrative law judge's finding that the biopsy
evidence was insufficient to establish the existence of pneumoconiosis pursuant to
Section 718.202(a)(2).
Additionally, we affirm the administrative law judge's finding that the
existence of pneumoconiosis was not established pursuant to Section 718.202(a)(3).
The administrative law judge properly determined that the presumption at 20 C.F.R.
§718.304 does not apply because the record does not contain evidence of
complicated pneumoconiosis. See 20 C.F.R. §718.304; Decision and Order
at 16. The administrative law judge further properly determined that the
presumptions at 20 C.F.R. §§718.305 and 718.306 are inapplicable in this
case since the instant miner's and survivor's claims were filed after January 1,
1982, and since the miner died after March 1, 1978. See 20 C.F.R.
§§718.305, 718.306; Decision and Order at 16.
Finally, the administrative law judge considered the new medical opinions
submitted after the district director's April 13, 1993 denial of the 1992 miner's
claim under Section 718.202(a)(4). The administrative law judge correctly stated
that Dr. Sundaram's opinion was the only new opinion which supported a finding that
the miner had the disease. Decision and Order at 17; Director's Exhibits 83, 89.
The administrative law judge also correctly stated that Dr. Broudy diagnosed mild
chronic obstructive airways disease resulting from cigarette smoking.[4] Decision and Order at 16-17; Director's Exhibit
92. Finally, the administrative law judge properly stated that Drs. Rogers, Kremp
and Tannir diagnosed chronic obstructive pulmonary disease, but did not link their
diagnoses of chronic obstructive pulmonary disease to coal dust exposure or any
specific cause. Decision and Order at 16-17; Director's Exhibits 94, 95, 97. The
administrative law judge concluded that the preponderance of the evidence did not
prove that the miner "suffered from legal pneumoconiosis," finding that the
opinions of Drs. Rogers, Kremp and Tannir were not well-reasoned. Decision and
Order at 16; Director's Exhibits 94, 95, 97.
The administrative law judge erred, however, by failing to determine, in
violation of the Administrative Procedure Act (the APA), whether the newly
submitted opinions of Drs. Sundaram and Broudy were documented and reasoned
opinions, i.e., to make credibility determinations with respect to each of
these opinions in order to attempt to resolve the conflict presented by the
evidence. See 5 U.S.C. §557(c)(3)(A), as incorporated by 5 U.S.C.
§554(c)(2), 33 U.S.C. §919(d), and 30 U.S.C. §932(a); Wojtowicz
v. Duquesne Light Co., 12 BLR 1-162 (1989); Seese v. Keystone Coal Mining
Corp., 6 BLR 1-149 (1983); Decision and Order at 17. It is evident that the
administrative law judge only summarily concluded that a preponderance of the
medical opinion evidence submitted after April 1993 was insufficient to establish
the existence of pneumoconiosis. Decision and Order at 17. We, therefore, vacate
the administrative law judge's finding that the medical opinion evidence submitted
after the district director's April 1993 denial of benefits was insufficient to
establish the existence of pneumoconiosis under Section 718.202(a)(4). On remand,
the administrative law judge must provide a weighing of all of the relevant medical
opinion evidence under Section 718.202(a)(4) which comports with the APA.[5] See 5 U.S.C. §557(c)(3)(A), as
incorporated by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d), and 30 U.S.C.
§932(a).
In addressing the issue of total disability under Section 718.204(c), the
administrative law judge initially considered the newly submitted pulmonary
function study and arterial blood gas study evidence, and properly found that two
of the three new pulmonary function studies and all three new arterial blood gas
studies produced non-qualifying results for total disability.[6] Decision and Order at 17; Director's Exhibits
82, 96-98. The administrative law judge further correctly stated that the
previously submitted pulmonary function studies, administered on August 20, 1980,
October 7, 1980, August 2, 1988 and December 7, 1992, all produced non-qualifying
values, as did all of the prior arterial blood gas studies, which were administered
on August 26, 1980, October 7, 1980 and December 7, 1992. Decision and Order at
18; Director's Exhibits 17, 18, 110, 111, 114. We thus affirm, as supported by
substantial evidence, the administrative law judge's finding that claimant failed
to establish that the miner was totally disabled pursuant to Section 718.204(c)(1)
or (c)(2). See 20 C.F.R. §718.204(c)(1), (2). Additionally, the record
does not contain evidence of cor pulmonale with right sided congestive heart
failure, and claimant is thus precluded from establishing total disability under
Section 718.204(c)(3). See 20 C.F.R. §718.204(c)(3).
The administrative law judge next considered the newly submitted medical
opinion evidence with regard to total disability. The administrative law judge
correctly stated that Dr. Sundaram was the only physician who found that the miner
was totally disabled due to pneumoconiosis. Decision and Order at 17; Director's
Exhibits 83, 89. The administrative law judge then found that the reports of Drs.
Rogers, Chaney, Kremp and Tannir, as well as the miner's hospital records, were
entitled to little weight. In this regard, the administrative law judge found that
these reports were not well-reasoned or well-documented because they did not
indicate a finding regarding total disability. Decision and Order at 17;
Director's Exhibits 95, 97. The administrative law judge further stated that the
newly submitted opinion of Dr. Broudy, in contrast, indicated that the miner was
not totally disabled from a respiratory standpoint. Decision and Order at 17;
Director's Exhibit 92. The administrative law judge then concluded that the
preponderance of the new evidence did not show that the miner was totally disabled
due to pneumoconiosis. Decision and Order at 17. The administrative law judge
also stated that he considered the previous evidence, and found that Drs. Williams
and Cornish did not make a finding on total disability, while Dr. Wicker opined
that the miner retained the respiratory capacity to perform his usual coal mine
employment. Decision and Order at 18; Director's Exhibits 18, 114. The
administrative law judge concluded that this evidence also supports a finding of
no total disability. Id.
We hold that the administrative law judge erred in summarily concluding,
without weighing the relative merits of the medical opinions, that the
preponderance of the medical opinion evidence was insufficient to establish total
disability under Section 718.204(c)(4), in contravention of the APA. See
Wojtowicz, supra; Seese, supra; Decision and Order at 17-18. The
administrative law judge merely engaged in a quantitative analysis, noting that
there was one medical opinion supporting a finding of total disability, and that
there were two opinions which supported a contrary finding. Id. We,
therefore, vacate the administrative law judge's conclusion that claimant failed
to establish total disability by a preponderance of the evidence under Section
718.204(c)(4), and remand the case for the administrative law judge to provide, if
reached, a weighing of all of the relevant evidence thereunder which comports with
the APA. See 5 U.S.C. §557(c)(3)(A), as incorporated by 5 U.S.C.
§554(c)(2), 33 U.S.C. §919(d), and 30 U.S.C. §932(a).
Claimant's duplicate claim is subject to automatic denial unless she
establishes pursuant to 20 C.F.R. §725.309 that a material change in
conditions has occurred since the prior denial of the miner's original, 1980 claim.
See 20 C.F.R. §725.309. The United States Court of Appeals for the
Sixth Circuit, under whose jurisdiction the instant case arises, has held in
Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994), that in
order to determine whether a material change in conditions is established, an
administrative law judge 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. The miner's prior
claim, filed on July 18, 1980, was finally denied on January 16, 1981 by the
district director, who found that the miner failed to establish any of the elements
of entitlement under 20 C.F.R. Part 718. Director's Exhibit 114. On remand, the
administrative law judge should consider all of the relevant new evidence,
including Dr. Wicker's December 7, 1992 report, Director's Exhibit 18, in
determining whether claimant has established a material change in conditions by
establishing either the existence of pneumoconiosis under Section 718.202(a)(4) or
total disability under Section 718.204(c)(4).[7]
See Ross, supra.
We next affirm, however, the administrative law judge's denial of benefits in
the survivor's claim. Benefits are payable on a survivor's claim filed on or after
January 1, 1982 only where the miner's death was due to pneumoconiosis, where
pneumoconiosis was a substantially contributing cause of death, where death was
caused by complications of pneumoconiosis or where complicated pneumoconiosis is
established. See 20 C.F.R. §§718.1, 718.202, 718.203, 718.205(c);
Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993); Neeley v. Director,
OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP, 11 BLR 1-39 (1988).
The United States Court of Appeals for the Sixth Circuit has held that, for
purposes of Section 718.205(c)(2), pneumoconiosis is considered a substantially
contributing cause of the miner's death "where pneumoconiosis actually hastens
death." Brown v. Rock Creek Mining Co., Inc., 996 F.2d 812, 17 BLR 2-135
(6th Cir. 1993).
In concluding that claimant was precluded from establishing that the miner's
death was due to pneumoconiosis, the administrative law judge correctly noted that
there is no evidence of record indicating that pneumoconiosis was a cause of the
miner's death or that pneumoconiosis hastened the miner's death in any way.
See 20 C.F.R. §718.205(c)(1), (c)(2); Brown, supra; Decision and
Order at 22-23. The administrative law judge properly found that the miner's
hospital records from March 1994 through October 1994 indicated that the miner was
diagnosed with, and was receiving treatment for, renal cell carcinoma, which spread
to his lungs. Decision and Order at 23; Director's Exhibit 97. When the miner
died in the hospital on October 30, 1994, Dr. Chaney recorded the following final
diagnoses in his discharge summary: terminal metastatic renal cell carcinoma,
klebsiella pneumonia, lung metastasis, dehydration, cachexia, chronic anemia, and
prerenal azotemia. Director's Exhibit 97. Dr. Chaney further indicated on the
miner's death certificate that the miner died of respiratory failure as a
consequence of metastatic renal carcinoma. Director's Exhibit 14. The
administrative law judge correctly stated that the hospital records did not
indicate that pneumoconiosis played a role in the miner's death, or even that the
miner had pneumoconiosis,[8] and that none of the
other reports of record indicated that the miner's death was caused or hastened by
pneumoconiosis. 20 C.F.R. §718.205(c)(1), (c)(2); Decision and Order at 23;
Director's Exhibits 14, 97.
Moreover, the record contains no evidence of complicated pneumoconiosis and,
therefore, claimant cannot establish that the miner's death was due to
pneumoconiosis under Section 718.205(c)(3). Since the administrative law judge
properly found that the record is devoid of evidence that supports claimant's
burden under Section 718.205(c)(1)-(3), the administrative law judge properly
denied benefits in the survivor's claim. 20 C.F.R. §718.205(c); Brown,
supra; Decision and Order at 22-23.
Finally, we agree with Ray Coal and the Director that Ray Coal and its
carrier, Sun Coal, were improperly retained by the administrative law judge as
potentially secondarily liable for benefits, and should be dismissed as parties to
this case. As Ray Coal concedes, the district director acted properly and,
moreover, met his responsibility in naming Ray Coal as a putative responsible
operator in addition to designating Diamond May and its carrier, Kentucky Coal
Producers, as the primary responsible operator.[9]
See 20 C.F.R. §725.412(a); Director, OWCP v. Tracefork Coal Co.
[Matney], 67 F.3d 503 (4th Cir. 1995); England v. Island Creek Coal Co.,
17 BLR 1-141 (1993). Once the administrative law judge determined in his Decision
and Order that Diamond May was the company with whom the miner spent his last year
of cumulative coal mine employment, and that Diamond May was, therefore, properly
designated the responsible operator pursuant to Section 725.493(a)(1), however, the
administrative law judge should have dismissed Ray Coal.
Neither the Act nor the regulations contain provisions that support an
administrative law judge's decision to hold a coal mine operator secondarily liable
for the payment of benefits.[10] See 30
U.S.C. §901 et seq.; 20 C.F.R. §725.490 et seq. We hold
that the administrative law judge erred when he made Ray Coal and its carrier, Sun
Coal, secondarily liable for the payment of benefits. The parties do not argue to
the contrary. We, therefore, vacate the administrative law judge's finding and
dismiss Ray Coal and Sun Coal as parties in this case.
Accordingly, the administrative law judge's Decision and Order Denying
Benefits on Miner's Claim and Denying Benefits on Survivor's Claim is affirmed in
part, and vacated in part, and the case is remanded for reconsideration consistent
with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Claimant is the surviving spouse of the miner, who died on
October 30, 1994. Director's Exhibits 3, 14. The miner's death certificate,
signed by Dr. Chaney, indicated that the immediate cause of the miner's death was
respiratory failure due to, or as a consequence of, metastatic renal carcinoma.
Director's Exhibit 14.
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2)The miner filed an initial living miner's claim on July 18,
1980, which the district director finally denied on January 16, 1981 for the
miner's failure to establish pneumoconiosis arising out of coal mine employment and
total disability due to pneumoconiosis. Director's Exhibit 114. The miner took
no further action in pursuit of benefits until filing a duplicate claim on November
5, 1992. Director's Exhibit 1.
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3)The record includes four positive x-ray readings, and twenty-one negative interpretations. Two of the positive readings were submitted by Drs.
Chaney and Williams, physicians with no special radiological qualifications.
Director's Exhibits 97, 114. Dr. De Ponte, a B reader, submitted the other two
positive readings of record, interpreting the December 7, 1992 and October 12, 1993
films as positive. Director's Exhibits 107, 108. The December 7, 1992 film was
read as negative by Dr. Barrett, who, unlike Dr. De Ponte, is a Board-certified
radiologist as well as a B reader. Director's Exhibit 105. Dr. Barrett also read
the October 12, 1993 film as negative, as did Drs. Sargent and Halbert, who
likewise are dually-qualified B reader/Board-certified radiologists. Director's
Exhibits 84, 90, 106.
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4)Dr. Broudy further specifically stated that the miner did not
have pneumoconiosis or any disease arising out of his work in coal mine employment.
Director's Exhibit 92.
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5)On remand, the administrative law judge should consider
whether the opinions are well-reasoned and documented. A medical opinion is
documented if it sets forth the clinical findings, observations, facts and other
data upon which the physician based his opinion, and a medical opinion is
considered reasoned if the physician explains how the opinion's documentation
supports his conclusions. Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291
(1984).
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6)A "qualifying" pulmonary function study or arterial blood gas
study yields values which are equal to or less than the applicable table values set
forth in Appendices B and C of Part 718. See 20 C.F.R. §718.204(c)(1)
and (c)(2). A "non-qualifying" test yields values which exceed the requisite table
values.
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7)As discussed supra, the administrative law judge
considered all of the evidence of record in rendering his findings that the
existence of pneumoconiosis was not established under 20 C.F.R.
§718.202(a)(1)-(3) and that total disability was not established under 20
C.F.R. §718.204(c)(1)-(3). Inasmuch as the administrative law judge's
findings in this regard are supported by substantial evidence, as discussed
supra, the fact that the administrative law judge did not analyze the
evidence under Sections 718.202(a)(1)-(3) and 718.204(c)(1)-(3) in terms of whether
the evidence established a material change in conditions pursuant to 20 C.F.R.
§725.309 did not constitute prejudicial error. See Larioni v. Director,
OWCP, 6 BLR 1-1276 (1984).
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8)In records of the miner's several hospitalizations between
March 1994 and October 30, 1994, Drs. Chaney and Tannir noted a history of chronic
obstructive pulmonary disease, but did not note an etiology for the disease or
indicate to what extent it was affecting the miner's physical condition.
Director's Exhibit 97.
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9)Section 725.412(a), which governs the designation of a
responsible operator, provides that:
At any time during the processing of a claim under this part, after
sufficient evidence has been made available to the deputy commissioner,
the deputy commissioner may identify a coal mine operator...which may
be liable for the payment of the claim....Such identification shall
be made as soon after the filing of the claim as the evidence obtained
permits. (emphasis added).
20 C.F.R. §725.412(a). "Responsible operator" is defined as "the operator
or other employer with which the miner had the most recent periods of cumulative
employment of not less than one year." 20 C.F.R. §725.493(a)(1).
On November 27, 1995, the district director denied a request from Ray Coal
that it be dismissed as a secondary, putative responsible operator. Director's
Exhibit 61. The district director based his denial on the grounds that the primary
operator's carrier, Kentucky Coal Producers Self-Insurance Fund (Kentucky Coal
Producers), was involved in a pending bankruptcy proceeding. Id. The
district director informed Ray Coal that a back-up operator must be retained until
the district director receives documentation showing the capability of Kentucky
Coal Producers to assume liability. Id.
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10)The regulations require that the Black Lung Disability
Trust Fund (Trust Fund) pay benefits when a responsible operator which has been
found liable for benefits, such as Diamond May Coal Company and its carrier
Kentucky Coal Producers have undisputedly been in the instant case, subsequently
defaults on the payment of benefits. See 20 C.F.R. §725.490,
725.605(a). If and when such a default occurs, the regulations outline the
procedures for the Trust Fund to file an action in federal court against the
designated responsible operator to recover the payments made by the Trust Fund.
See 20 C.F.R. §725.605(b).
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NOTE: This is an UNPUBLISHED BLA Document.
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