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RECENT SIGNIFICANT DECISIONS
Black Lung Benefits Act
Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 142
June - July 1999
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
II. Black Lung Benefits Act
A. Circuit Courts of Appeal
In Kerns v. Consolidation Coal Co. , ___ F.3d ___, Case No. 95- 2052 (4th Cir. May 18, 1999), the court held that it was proper to award an enhanced fee to compensate counsel for the six year delay between the time his fee was initially awarded and the date on which he received payment of the fee. Specifically, the ALJ awarded a fee to Claimant's counsel on June 20, 1984 at the hourly rate of $80. Through a myriad of appeals and remands, the award of benefits was ultimately affirmed by the court and Employer sent counsel a check dated July 20, 1990 as payment for services rendered pursuant to the ALJ's 1984 fee order.
The court held that, contrary to Employer's assertion, it had jurisdiction to consider the fee enhancement request, which was submitted years after the 1984 fee award, as the original fee award did not become final until the compensation order became final. It noted that "[a]lthough the law at the time (counsel) filed his fee request did not require that the ALJ consider enhancement for delay, current law does." In support of this statement, the court cited to the Board's recent holding in Nelson v. Stevedoring Servs. of America , 29 B.R.B.S. 90 (1995) wherein the Board held that an ALJ is permitted to award a higher hourly rate to account for the delay in receipt of payment of the fee awarded.
- [ enhancement of fees for delay ]
In Double B Mining, Inc. v. Blankenship , ___ F.3d ___, Case No. 98-1206 (4th Cir. May 21, 1999), a case involving the issue of complicated pneumoconiosis, the court stated that a diagnosis of "massive lesions" on autopsy or biopsy is the same as requiring a finding of A, B, or C opacities on chest x-ray. In this vein, the court found that a physician's finding of "massive fibrosis" on biopsy, which included a lesion or nodule which was 1.3 centimeters in diameter, was insufficient to determine whether Claimant suffered from complicated pneumoconiosis. Rather, it concluded the following:
-
To determine whether Blankenship's condition meets the statutory criteria, we must
remand this case to the Board for remand to the ALJ to find whether the 1.3-centimeter
lesion would, if x-rayed prior to removal of that portion of Blankenship's lung, have
showed as a one-centimeter opacity.
- It may be necessary for an ALJ to make a separate equivalency determination each time a miner presents evidence of massive lesions diagnosed by biopsy. On the other hand, it may be possible for the Department of Labor to engage in a single fact-finding exercise to determine how large a lesion must be in order to appear on an x-ray as a greater-than-one-centimeter opacity and thereafter to promulgate a rule imposing this finding on all future cases. Either way, however, an equivalency determination must be made.
The court noted that the Board and medical community have determined that the lesion found on biopsy or autopsy must measure at least two centimeters in diameter in order to support a finding of complicated pneumoconiosis because nodules are larger on autopsy or biopsy than they appear on a chest x-ray. The court declined to follow this bright-line rule, however, and reasoned that "[t]he statute does not mandate the use of the medical definition of complicated pneumoconiosis."
- [ complicated pneumoconiosis by biopsy or autopsy ]
In Gray v. SLC Coal Co. , ___ F.3d ___, Case No. 97-4427 (6th Cir. ay 24, 1999), the court held that a miner who died of a self-inflicted gunshot wound may nevertheless be awarded black lung benefits if it is determined that he suffered from complicated pneumoconiosis and, therefore, invoked the irrebuttable presumption of total disability due to the disease. The court then reviewed the record to determine whether it supported a finding of complicated pneumoconiosis. It noted that a diagnosis of the disease may be made based upon chest x-ray evidence revealing opacities which are greater than one centimeter in diameter or autopsy or biopsy evidence which demonstrates "massive lesions." The court then determined that x-ray evidence of opacities measuring at least one centimeter does not, alone, trigger the irrebuttable presumption where conflicting autopsy evidence exists. Moreover, the "one-centimeter standard applicable to x-rays simply does not apply to autopsy evidence." The court stated that x-rays are the "least accurate method" of diagnosing complicated pneumoconiosis such that "all relevant evidence" must be weighed prior to invocation of the presumption. In this vein, the court concluded that the autopsy evidence did not support a finding of complicated pneumoconiosis as Dr. Kleinerman testified "that the lesions on the lung-tissue slides would not appear as opacities of greater than one centimeter on an x-ray" and the nodules observed in the miner's lung on autopsy did not constitute "'massive lesions'" as required by the regulation.
- [ complicated pneumoconiosis by biopsy or autopsy ]
In Peabody Coal Co. v. Director, OWCP [Ricker] , ___ F.3d ___, Case No. 98-3263 (8th Cir. June 22, 1999), the court addressed the amount of benefits to which each of two surviving wives are entitled. One surviving spouse had been married to the miner until the time of his death and had not remarried. The surviving divorced spouse had been married to the miner for at least ten years and "received substantial monetary support from him." The court noted that the district director had awarded both survivors 100 percent of the basic benefit award pursuant to a change in the Department of Labor's policy. It upheld these payment amounts by reasoning that the plain language of the Act provides that "both a surviving wife and a qualifying surviving divorced wife are entitled to full benefits . . .." See 30 U.S.C. §§ 902(e) and 922(a)(3) and (5).
- [ surviving spouse and surviving divorced spouse entitlement to full benefits ]
In Piney Mountain Coal Co. v. Mays , ___ F.3d ___, Case No. 97- 2560 (4th Cir. May 5, 1999), the court upheld the award of full basic benefits to the coal miner's widow and former spouse on grounds that "a surviving widow is a beneficiary in her own right" such that it would be unjust to conclude that the widow was a primary beneficiary and the divorced survivor as merely a dependent augmentee.
- [ surviving spouse and surviving divorced spouse entitlement to full benefits ]
In the survivor's claim of Clinchfield Coal Co. v. Fuller , ___ F.3d ___, Case No. 98-1949 (4th Cir. June 25, 1999), Employer stipulated to the presence of coal workers' pneumoconiosis but argued that it did not hasten the miner's death. In weighing the autopsy evidence of record, the ALJ credited Claimant's physicians' opinions over opinions offered by Employer who found only a "'mild' or 'minimal" level of simple coal workers' pneumoconiosis. The ALJ reviewed the definition of pneumoconiosis as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments , arising out of coal mine employment . . .." 20 C.F.R. § 718.201 (emphasis added). From this, the ALJ concluded that "[b]ecause Clinchfield stipulated that Mr. Fuller had pneumoconiosis, . . . it must also have stipulated that his pneumoconiosis was impairing . . .." The court disagreed to state that § 718.201 does not contain a requirement that "coal dust-specific diseases . . . attain the status of an 'impairment' to be classified as 'pneumoconiosis.'" The court further noted that the definition of pneumoconiosis is satisfied "whenever one of these diseases is present in the miner at a detectable level; whether the particular disease exists to such an extent as to be compensable is a separate question." As a result, the case was remanded to the ALJ to reweigh the autopsy evidence to determine whether the disease hastened the miner's death.
- [ pneumoconiosis; stipulations ]