BRB Nos. 94-3686 BLA
and 94-3686 BLA-A
BONNIE C. PORTER-DONAHUE )
(Widow of HARRISON B. PORTER) )
)
Claimant-Respondent )
)
v. )
)
COEBURN TRUCKING COMPANY )
)
and )
)
OLD REPUBLIC INSURANCE COMPANY) DATE ISSUED:08/23/1995
)
Employer/Carrier- )
Respondents )
Cross-Petitioner )
)
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Petitioner ) DECISION and ORDER
Appeal of the Decision and Order of Sheldon R. Lipson, Administrative
Law Judge, United States Department of Labor.
Michael J. Pollack (Arter & Hadden), Washington, D.C., for employer.
Barry H. Joyner (Thomas S. Williamson, Jr., 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 DOLDER,
Administrative Appeals Judges.
PER CURIAM:
The Director, Office of Workers' Compensation Programs (the Director) appeals,
and employer cross-appeals, the Decision and Order (92-BLA-1613) of Administrative
Law Judge Sheldon R. Lipson, transferring liability for the payment of benefits to
the Black Lung Disability Trust Fund (Trust Fund) on a 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). The administrative law judge
determined that the miner's[1] claim was subject
to transfer to the Trust Fund pursuant to 20 C.F.R. §725.496. Accordingly,
he dismissed as parties all named employers and carriers.[2]
On appeal, the Director contends that the administrative law judge erred in
excluding relevant evidence on the transfer issue and in finding that liability on
the miner's claim transferred to the Trust Fund. Employer, on cross-appeal, urges
affirmance of the administrative law judge's Decision and Order, and seeks to
preserve for future proceedings those issues controverted in this case and not
decided by the administrative law judge. Claimant has not responded to this
appeal.
The Board's scope of review is defined by statute. If the administrative law
judge's findings of fact and conclusions of law 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).
The Director contends that the administrative law judge erred in finding the
evidence of record sufficient to establish that the miner's claim had been denied
prior to March 1, 1977. Director's Brief at 4. The administrative law judge found
that the only evidence addressing whether the miner's claim was denied prior to
March 1, 1977 was a letter written by the miner's daughter, Kathy (Porter)
Buchanan, to the Department of Labor (DOL) on May 5, 1992. Decision and Order at
3; Director's Exhibit 166. In this letter, the miner's daughter states: "My Dad
tried to get his Black Lung in 1974 and 1975, but he was denied even though he had
complicated pneumoconiosis at that time. . .. So when he was turned down for black
lung benefits in 1975, he didn't fight it." Director's Exhibit 166. Regarding the
letter, the administrative law judge stated: "To be sure, this would not be as
probative as the Department's dated denial letter, itself. Regrettably, that does
not appear to be among the documents of record." Decision and Order at 3.
The Director argues that the administrative law judge erred in relying on the
letter because he failed to (1) assess the letter's credibility, (2) consider that
the letter provides no basis for the daughter's knowledge of the fact which she
asserts, and (3) address the letter's self-serving nature. Director's Brief at 8-9. As the trier-of-fact, the administrative law judge has broad discretion to
assess the evidence of record and determine whether a party has met its burden of
proof. See Kuchwara v. Director, OWCP, 7 BLR 1-167 (1984). Further, the
weight to be accorded to the evidence and determinations concerning credibility are
within the purview of the administrative law judge. See Mabe v. Bishop Coal
Co., 9 BLR 1-67 (1986). As the United States Court of Appeals for the Fourth
Circuit, within whose jurisdiction this case arises, has stated: "The
administrative law judge is in a better position to assess the weight and
sufficiency of the evidence than either the Board or this Court." Zbosnik v.
Badger Coal Co., 759 F.2d 1187, 1190, 7 BLR 2-202, 2-208 (4th Cir. 1985).
In this case, the administrative law judge admitted the letter into the record
without objection and permissibly found it to be credible and sufficient to support
a finding that the miner's claim was finally denied in 1975. Hearing Transcript
at 60; Decision and Order at 3-4; see Mabe, supra; Kuchwara,
supra. The administrative law judge stated that the letter would not be as
probative as a dated denial letter, but he did not find that the letter was not
probative as to the issue in question. Decision and Order at 4. Thus, we reject
the Director's contentions regarding the administrative law judge's treatment of
this letter and affirm his credibility determination. See Tackett v. Cargo
Mining Co., 12 BLR 1-11 (1988)(en banc).
The Director next contends that the administrative law judge erred in relying
on DOL's Form CM-1088 in determining that the miner's claim had been denied.
Director's Brief at 7. The Director states that the administrative law judge's
finding was "based primarily, if not exclusively," on this form letter, which
notified the miner that the DOL was reconsidering his claim under the 1977
Amendments. Director's Brief at 7; Director's Exhibit 18.
Contrary to the Director's contention, the administrative law judge stated
that the only evidence on the issue of whether the claim was denied prior to March
1, 1977 is the letter written by the miner's daughter. Decision and Order at 3.
Therefore, the administrative law judge did not rely on the form letter in finding
that the miner's claim was denied prior to March 1, 1977.
While the administrative law judge stated that the letter dated July 2, 1980
indicated that the claim had already been
considered and denied, and the Board has held that Form CM-1088[3] does not constitute a denial, see Etzweiller
v. Cleveland Brothers Equipment Co., 8 BLR 1-172 (1985), such error is
harmless, see Larioni v. Director, OWCP, 6 BLR 1-1276 (1984), because the
administrative law judge provided a valid alternative rationale in relying on the
1992 letter from the miner's daughter, see Kozele v. Rochester and Pittsburgh
Coal Co., 6 BLR 1-378 (1983), to find that the claim was denied prior to March
1, 1977 and the language of the CM-1088 letter does not contradict that of the
daughter's letter. Decision and Order at 3-4; Director's Exhibits 18, 166. Thus,
we reject the Director's contentions regarding the administrative law judge's
treatment of the form letter.
The Director next contends that the administrative law judge erred in stating
that counsel for the Director conceded at the hearing that the miner's claim was
in denial status as of March 1, 1978. Director's Brief at 7, n. 6. The Director
argues that counsel's statement was based on her erroneous belief that the miner
had filed a Part B claim with the Social Security Administration instead of a Part
C claim, and that this explanation was pointed out to the administrative law judge
in the post-hearing briefs. Id. The administrative law judge considered
counsel's statements at the hearing and counsel's explanation in the post-hearing
brief and permissibly found that counsel conceded that the miner's claim was in
denial status as of March 1, 1978. Decision and Order at 2, 4; Hearing Transcript
at 42-43; Director's Post-Hearing Brief at 2; see Lafferty v. Cannelton
Industries, Inc., 12 BLR 1-190 (1980); Mabe, supra;
Kuchwara, supra. Thus, we reject the Director's contention.
Finally, the Director contends that the administrative law judge abused his
discretion in refusing to re-open the record to admit evidence which was proffered
with the Director's post-hearing brief to respond to the transfer issue.
Director's Brief at 10. Specifically, the Director argues that the issue was
raised for the first time at the hearing, that the administrative law judge allowed
the Director the opportunity to respond post-hearing, and that part of his response
is evidence, especially the Notice of Review, demonstrating that the miner's claim
was not denied prior to March 1, 1977. Director's Brief at 10-12.
Contrary to the Director's contention, the administrative law judge noted that
he had made it "abundantly clear" at the hearing that he intended to close the
evidentiary record at that time and "bring clo[s]ure to a claim that dates back to
1974 which, in the course of its tortuous history, was remanded on three separate
occasions by administrative law judges because of a failure to fully develop
evidence." Decision and Order at 2, n. 1.
Further, at the hearing, the administrative law judge engaged in a discussion
of the transfer issue with the Director's counsel and the other counsel of record.
Hearing Transcript at 41-51. During this discussion, the Director's counsel stated
that "there is no evidence that we have not produced. I want to make that clear."
Hearing Transcript at 48. At the end of this discussion, the administrative law
judge stated:
Any decision made in this matter will be based solely on the record made
at this hearing. Any papers, documents or exhibits previously submitted
to or filed with the Deputy Commissioner are not a part of this record
at this time. Any such paper, document or exhibit must be introduced
into evidence at this hearing if anyone wishes it to be a part of the
record.
Hearing Transcript at 51-52.
The Board has held that the administrative law judge is afforded broad
discretion in dealing with procedural matters and may refuse to admit post-hearing
evidence. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989);
Itell v. Ritchey Trucking Co., 8 BLR 1-356 (1985); Conn v. White Deer
Coal Co., 6 BLR 1-979 (1974). While Section 725.497(b) provides that where the
issue of the transferability of the claim cannot be resolved by agreement of the
parties and the evidence of record is not sufficient for a resolution of the issue,
the hearing record may be re-opened or the case remanded, in this case the
administrative law judge permissibly found the only probative evidence of record
sufficient to resolve the transfer issue. See discussion, supra.
Inasmuch as the administrative law judge made it clear that he would close the
record after the hearing, and Director's counsel failed to proffer any relevant
evidence[4] at that time, we hold that the
administrative law judge acted within his discretion in refusing to re-open the
record post-hearing. See Hensley v. Grays Knob Coal Co., 10 BLR 1-88
(1987); Thomas v. Freeman United Coal Mining Co., 6 BLR 1-739 (1984). Thus,
we reject the Director's contentions and affirm the administrative law judge's
finding that liability for the payment of benefits transfers to the Trust Fund
pursuant to 20 C.F.R. §725.496.
Accordingly, the administrative law judge's Decision and Order transferring
liability for the payment of benefits to the Trust Fund is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1)The miner is Harrison B. Porter who filed a claim for benefits
on September 16, 1974. Director's Exhibit 1. The miner died on April 21, 1986,
and claimant, Bonnie C. Porter-Donahue, the miner's widow, filed a survivor's claim
on August 31, 1987. Director's Exhibits 19, 21.
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2)The named employers are Top Notch Coal Company, Bull Run Coal
Company, and Coeburn Trucking Company. The named carriers are Rockwood Insurance
Company, Nationwide Insurance Company, and Old Republic Insurance Company.
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3)The form letter states that the Department of Labor is
"reconsidering" the claim under the 1977 Reform Act and that claimant has the right
to submit additional medical evidence. Under the 1977 Amendments, all pending and
denied claims were to be reconsidered; the form letter does not indicate whether
the claim to be reconsidered was either pending or denied and thus is not relevant
to the issue. See Etzweiller, supra.
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4)We note that the excluded Notice of Review and accompanying
transfer analysis are dated June 9, 1987. Director's Exhibit 168-170. We also
note that Director's counsel offered no explanation for why the Notice of Review
and transfer analysis were not submitted for admission into the record prior to the
hearing. 20 C.F.R. §725.456.
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NOTE: This is an UNPUBLISHED BLA Document.
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