RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 135
arch-April 1998

James Guill
Associate Chief Judge for Longshore

Thomas M. Burke
Associate Chief Judge for Black Lung


   A. Circuit Courts of Appeal

   In Lane Hollow Coal Co. v. Director, OWCP [Lockhart] , ___ F.3d ___, Case No. 96-2819 (4th Cir. Mar. 3, 1998), the Fourth Circuit held that Employer was dismissed from the case and relieved of liability for the payment of benefits where "the extraordinary delay in notifying [Employer] of its potential liability deprived it of a meaningful opportunity to defend itself in violation of the Due Process Clause of the Fifth Amendment." Indeed, the court set forth the lengthy procedural history of the claim and found that "[Employer] was finally notified of the claim on April 6, 1992, seventeen years after notice could have been given and eleven years after the regulations command that it be given." The court further noted the following:

The problem here is not so much that [Claimant] died before notice to [Employer], but rather that he died many years after such notice could and should have been given. The government's grossly inefficient handling of the matter and not the random timing of death denied [Employer] the opportunity to examine [Claimant].

(emphasis in original).

   Turning to the merits of the claim, the court upheld an award of benefits under 20 C.F.R. Part 727. Initially, the court noted that pneumoconiosis is "progressive and irreversible" such that it is proper to accord greater weight to later positive x-ray studies over earlier negative studies. It further stated that, generally, "later evidence is more likely to show the miner's current condition" where it is consistent in demonstrating a worsening of the miner's condition.

   The court then reiterated that, under § 727.203(b)(3), the party opposing entitlement must "rule out" the causal nexus between Claimant's total disability and his coal mine employment. In this vein, the court concluded that "[i]n cases in which the combined effects of several diseases disable the miner, the employer obviously cannot meet its burden of proof by focusing solely on the disabling potential of the miner's pneumoconiosis." Rather, the court held that Employer must prove that the miner's "primary condition, whether it be emphysema or some other pulmonary disease, was not aggravated to the point of total disability by prolonged exposure to coal dust." It then stated that "[d]isputing the clinical accuracy of the law is not rebuttal" and noted that it is error for a physician to conclude that the miner has no pulmonary impairment related to his coal mine employment "because simple pneumoconiosis does not generally cause any pulmonary impairment." The court concluded that this position is contrary to the regulations.

   The court found that (b)(3) rebuttal is accomplished either by demonstrating that the miner has no respiratory or pulmonary impairment of any kind or that the evidence establishes that his impairment is attributable "solely to sources other than coal mine employment." The court concluded that "[t]here is a critical difference between evidence of no impairment , which can, if credited, rebut the interim presumption, and no evidence of impairment , which cannot." (emphasis in original).

[ due process of law; rebuttal under § 727.203(b)(3) ]

   In Milburn Colliery Co. v. Director, OWCP [Hicks] , ___ F.3d ___, Case No. 96-2438 (4th Mar. 6, 1998), the court reviewed the blood gas study of evidence and found that "[o]ut of a total of nine tests, the five initial tests produced qualifying results, and the four later tests did not." It noted that, in previous decisions, it has rejected the " later is better'" approach to weighing conflicting x-ray evidence but that, in this case, "the parties conceded at oral argument that because pneumoconiosis is a progressive disease, later nonqualifying blood gas studies are inconsistent with coal workers' pneumoconiosis . . .." The court concluded that it was error for the administrative law judge to credit an earlier qualifying study solely on the grounds that it was "validated" by a Department of Labor physician. Specifically, the court stated that the physician "merely checked a box verifying that the test was technically acceptable" and "provided no reasons for his opinion" such that "his validation lent little additional persuasive authority to (the earlier study)." The court concluded that the administrative law judge "failed to consider . . . testimony that obesity could affect the blood gas studies, causing the studies to be more likely to qualify; nor did the ALJ address the potential effect of (Claimant's) heart disease and intervening coronary artery surgery on the tests."

   Further, the court held that "[w]hile relevant to the issue of whether there is a totally disabling respiratory impairment, a miner's own statements about his history of coal mine employment or symptoms of pneumoconiosis are not conclusive in resolving conflicting medical opinion evidence." The court then stated that "the length of a miner's coal mine employment does not compel the conclusion that the miner's disability was solely respiratory" and the "mere presence of pneumoconiosis (by x-ray) is not synonymous with a totally disabling respiratory condition."

   Finally, the court concluded that the administrative law judge erred in stating that, even if Claimant's cardiac condition was the primary cause of his total disability, it was not the exclusive cause. Citing to Jewell Smokeless Coal Corp. v. Street , 42 F.3d 241, 243 (4th Cir. 1994), the court "rejected the argument that [a] miner need only establish that he has a total disability, which may be due to pneumoconiosis in combination with nonrespiratory and nonpulmonary impairments.'" Thus, the court held that, even if it is determined that Claimant suffers from a totally disabling respiratory condition, he "will not be eligible for benefits if he would have been totally disabled to the same degree because of his other health problems."

   In weighing the conflicting evidence on remand, the court instructed that physicians' qualifications be considered. Moreover, considering the numerous legal errors made by the original administrative law judge, the court held that "this claim requires a fresh look at the evidence, unprejudiced by the various outcomes of the ALJ and Board's orders below" and directed that the claim be assigned to a new administrative law judge who would have "discretion to reopen the record."

[ blood gas studies "later evidence" rule ; establishing total disability ; remand to a new ALJ ]

   In Peabody Coal Co. v. Director, OWCP [Ferguson] , ___ F.3d ___, Case No. 97-3050 (6th Cir. Apr. 1, 1998), the court held that the administrative law judge erred in failing to consider evidence submitted by Employer on remand regarding rebuttal under 20 C.F.R. § 727.203(b)(3). Specifically, the administrative law judge declined to reopen the record and reconsider his findings under subsection (b)(3) on remand because the Board "explicitly affirmed (his) finding that there was no rebuttal under § 727.203(b)(3) of the regulations." The Board agreed. The court, however, held otherwise and reasoned that the change in standard under subsection (b)(2) after the hearing, whereby Employer had to establish that the miner was not totally disabled for any reason, shifted emphasis to the subsection (b)(3) rebuttal of ruling out the causal nexus between the miner's total disability and his coal mine employment. Indeed, the court noted that subsection (b)(3) became the less stringent rebuttal provision of the two subsections. The court then stated the following:

In the case at hand, Peabody presented new evidence as to (b)(2) and (b)(3), however, the ALJ refused to consider the new evidence as to (b)(3), and thus, only considered (b)(2) rebuttal. This was error. It is clear that Peabody was entitled to reconsideration as to both (b)(2) and (b)(3). (footnote omitted). Thus, in accord with (Cal-Glo Coal Co. v. Yeager , 104 F.3d 827, 832 (6th Cir. 1997), the Board committed a manifest injustice by denying Peabody full consideration.

Slip op. at 4

[ reopening the record on remand; manifest injustice ]

    B. Benefits Review Board

   In Branham v. Bethenergy Mines, Inc. , ___ B.L.R. ___, BRB No. 97-0334 BLA (Mar. 19, 1998) (J. McGranery, dissenting), Claimant was initially awarded benefits by an ALJ whose decision was affirmed by the Board but, by petition for modification filed by Employer, a second ALJ concluded that a "mistake in a determination of fact" had been made and Claimant was not entitled to benefits. The Board rejected Claimant's argument that Employer's modification request constituted an improper collateral attack on the original ALJ's decision. The Board further held that it was proper for the second ALJ to reopen the record for the submission of new evidence to state that "[o]ne could hardly find a better reason for rendering justice than that it would be unjust or unfair to require an employer to pay benefits to a miner who does not meet the requirements of the Act." In a dissenting opinion, Judge McGranery stated that modification should not become an avenue for Employer to retry its case and make " a better showing on the second attempt.'" She noted that Claimant prevailed by a preponderance of the evidence but "Employer, with its superior resources, shifted the balance" on modification. Judge McGranery therefore concluded that the interests of justice had not been served by reopening the case on modification.

[ modification by employer ]