RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 116
June 1994

A . United States Supreme Court

In Director, OWCP v. Greenwich Collieries, et al. , ___ U.S. ___, Case No. 93-744 (June 20, 1994), the United States Supreme Court upheld the Third Circuit's holdings that the "true doubt" rule is inapplicable to cases arising under the Black Lung Benefits Act.

[ IV - 66, "true doubt" rule ]

B. Circuit courts of appeals

In Johnson v. Peabody Coal Co. , ___ F.3d ___, Case No. 93-3439 (6th Cir. June 1, 1994), the Sixth Circuit held that the miner's survivor was not entitled to black lung benefits where her claim was "predicated upon the theory that her husband was severely depressed at the time he committed suicide and that this depression was caused by his illnesses, including pneumoconiosis." In so holding, the court determined that "legislative history is silent as to whether a psychological component would establish the necessary link between pneumoconiosis and death" and that "[p]sychiatry is far from an exact science" resulting in the court being "reluctant to plunge the DOL and the courts into yet another battle of courtroom experts, unless Congress has decided that is the way it should be."

[ suicide ]

In Drummond Coal Co. v. Freeman , ___ F.3d ___, Case No. 92-6425 (11th Cir. 1994), the Eleventh Circuit articulated parameters for weighing medical evidence under Part 727. The court held that an ALJ "need not ... find that a medical opinion is either wholly reliable or wholly unreliable." Thus, it would not be impermissible for an ALJ to find a doctor's opinion reliable on the issue of degree of impairment but unreliable on the issue of causation. However, quoting from the dissent in Mullins Coal , 484 U.S. at 167, the court noted that "when the weight of evidence in one of the medical- evidence categories invokes the presumption, then the same evidence cannot be considered during rebuttal to challenge the existence of the fact proved, but it may be considered if relevant to rebut one of the presumed elements of a valid claim for benefits."

[ IV - 21, weighing medical evidence ]

In the Part 727 case of Zeigler Coal Co. v. Office of Workers' Compensation Programs , ___ F.3d ___, No. 93-1131 (7th
Cir. May 11, 1994), the administrative law judge found the x-ray evidence, which consisted of 2 negative readings of one x-ray and 3 negative and 2 positive readings of another x-ray, to be equally balanced and applied the "true doubt" rule to invoke the interim presumption. The Seventh Circuit held that "while our opinions have been critical of decisions based entirely on 'head counts' of experts," there was no evidence in the record to support the ALJ's conclusion that the two positive readings outweighed the three negative readings. As stated in prior Seventh Circuit decisions, the ALJ must attempt to weigh x-ray readings "by considering the age of the readings, the qualifications of the experts, the persuasiveness of their reports and any other relevant evidence."

[ IV - 12, weighing x-ray evidence ]

C. Benefits Review Board

In Lucas v. Director, OWCP , BRB No. 92-1618 BLA (May 26, 1994)(unpub.), an award of a representative's fee was appealed in an overpayment case in which the attorney negotiated the repayment schedule. The Board held that the claimant, rather than the Trust Fund, was liable for the fee, as the proceeding was nonadversarial and the district director did not object to the repayment schedule.

[ XI - 5, attorney's fees in repayment cases ]

In Crum v. Wolf Creek Collieries , 18 B.L.R. ___, BRB No. 92-2309 BLA (Apr. 13, 1994)(pub.), the Board adopted the Ninth Circuit's holding in Metropolitan Stevedore Co. v. Brickner , 11 F.3d 887 (9th Cir. 1993), that, pursuant to section 26 of the Longshore and Harbor Workers' Compensation Act, as incorporated in the Black Lung Benefits Act, "only a federal court can assess a party's costs as sanction against a claimant who institutes or continues, without reasonable ground, workers' compensation proceedings under the LHWCA." Thus, the Board, the administrative law judge, and the district director are without authority to impose section 926 costs.

[ costs under § 926 ]