The Benefits Review Board has added a new Acting Administrative Appeals Judge, Malcolm D. Nelson. Acting Judge Nelson has a long history with the Board and has worked his way up through the ranks. He began as a staff attorney in 1979 and has been serving as the General Counsel to the Board for the last several years. He has seen several chief judges come and go at the Board, and his breadth of experience makes him a welcomed addition as an acting judge.
There have been a few interesting decisions issued recently regarding the Board’s procedural rules.
Most notably, the Seventh Circuit, in Midland Coal Co. v. Director, OWCP, 149 F.3d 558 (7th Cir. 1998), limited a party’s right to seek reconsideration by the Board under 20 C.F.R. § 802.407. Normally, a motion for reconsideration tolls the running of time to file an appeal with the United States Court of Appeals. The Court in Midland Coal, however, limited the tolling effect to only the first motion for reconsideration to the Board. The Court held that a second motion for reconsideration to the Board does not toll the time to appeal. Therefore, once the sixty-day period for appeal expires following the denial of the first motion for reconsideration, the court of appeals lacks jurisdiction. As a result, the Court dismissed as untimely Midland Coal’s appeal that was filed following a second motion for reconsideration. In a similar vein, see Peabody Coal Co. v. Abner, 118 F.3d 1106, 1108 (6th Cir. 1997).
Also, on the subject of motions for reconsideration, the Board in Harner v. International Anthracite Corp., 21 BLR 1-94 (1998), denied an employer’s second motion for reconsideration. In Harner, International Anthracite filed a timely first motion for reconsideration, which merely requested the Board to establish a “briefing order” and did not state its grounds for requesting reconsideration of the Board’s decision. International Anthracite’s second request for reconsideration was denied based upon the Board’s strict application of its procedural regulations to ensure timely consideration of all cases. The Board, specifically, strictly construed the requirement in 20 C.F.R. § 802.219(a) that a motion “shall state with particularity the grounds therefore and shall set forth the relief or order sought,” as being incorporated into the requirements for a motion for reconsideration under 20 C.F.R. §§ 802.407, 802.408.
The decisions in Midland Coal and Harner reflect the growing emphasis on timely resolutions of appeals by the Board. Also reflecting the Board’s emphasis on prompt resolution of appeals is the Board’s current practice of denying motions for enlargement of time to file briefs, except in extraordinary circumstances. The Board’s current approach is to deny most motions for enlargement of time. After denying the motion, however, the Board allows ten (10) days within which to file the brief which was the subject of the motion for enlargement of time. The effect has been a resolution of most appeals by the Board within one year.
In another procedural ruling, Cochran v. Westmoreland Coal Co., 21 BLR 1-89 (1998), the Board accepted an interlocutory appeal filed by the Director. The Board normally dismisses interlocutory appeals as being non-final. In Cochran, however, the Board applied the “collateral order exception” to the final judgment rule. The facts in Cochran reflect that the administrative law judge dismissed Westmoreland and declined to remand the case for further investigation to determine whether another employer should be identified as the responsible operator. The Board reasoned that the judge’s dismissal of Westmoreland as a potentially responsible operator resolved an important issue completely separate from the merits of the claim and that this issue would be unreviewable on appeal from the final decision on the merits of the claim. Under these limited circumstances, the Board held that the Director’s appeal was not premature.
The modification provisions of 20 C.F.R. § 725.310 allow the reopening of “final” decisions for further consideration on the grounds of a mistake of fact or change in conditions. The modification procedures have been used extensively by claimants seeking review of denied claims. Because Section 725.310 of the regulations allows “any party” to seek modification, it is becoming more common for employers to seek modification of awards.
In Branham v. Bethenergy Mines, Inc., 21 BLR 1-79 (1998) (Branham II), the Board affirmed an administrative law judge’s decision granting an employer’s request for modification of a prior award, resulting in the denial of benefits. The Board, in Branham II, affirmed modification on the basis of the judge’s determination that newly submitted evidence established a “mistake of fact” in the prior award of benefits. The Board explained, with Judge McGranery dissenting, that allowing the employer to obtain modification of the prior award renders justice under the Act, because “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.” Branham II, 21 BLR at 1-13.
Having recognized the employer’s right to seek modification, the question becomes the extent of the employer’s right to develop evidence and to require the claimant to submit to a physical examination during the course of modification proceedings. The Board may answer that question in an appeal that is currently pending in Selak v. Wyoming Pocahontas Land Co., BRB No. 97-0976 BLA. We have filed an amicus curiae brief in that case arguing that the regulations mandate an employer’s right to obtain an examination. Oral argument in Selak is scheduled for November 19, 1998.
The notion that employers are entitled to obtain a new examination of the claimant during modification proceedings is supported by the recent decision by the Sixth Circuit in Robbins v. Cyprus Cumberland Coal Co., 146 F.3d 425 (6th Cir. 1998), wherein the Court held that Section 725.310 ensures that parties to modification proceedings have the same procedural rights as they have with respect to the original claim, including the right to present the case by oral and documentary evidence. The thrust of Robbins was to require the administrative law judge to hold a new formal hearing, absent waiver by the parties or a decision granting summary judgment. The reasoning of Robbins, however, arguably is applicable to allowing an employer to obtain a new examination under Section 725.310 in order to ensure that the parties have the “same procedural rights” on modification as they have with respect to the original claim.
For another decision holding that the administrative law judge must conduct a new hearing on modification see Cunningham v. Island Creek Coal Co., 144 F.3d 388 (6th Cir. 1998).
The regulations at 20 C.F.R. § 725.493 impose liability on the employer with which the miner had the most recent periods of cumulative employment of not less than one year.
In a recent case we had before the United States Court of Appeals for the Sixth Circuit on behalf of Tennessee Consolidated Coal Company (TCC), the Court defined the one year period for identifying the responsible operator as including time during which the miner was on unpaid sick leave. BGL Mining Co. v. James T. Cash and Tennessee Consolidated Coal Co., No. 97-4003 (6th Cir. Sept. 11, 1998), unpublished. In BGL Mining, the miner was employed by TCC from 1975 until he was laid off in 1987. He later began working for BGL on April 6, 1989, which continued on a regular basis until April 4, 1990. On April 5, 1990, the miner did not report to work due to illness and, under company policy, was given a three-day grace period on unpaid sick leave. The administrative law judge originally identified TCC as the responsible operator, but TCC appealed to the Board. The Board vacated the administrative law judge’s responsible operator determination. On remand, the administrative law judge found that the miner’s employment relationship with BGL did not cease until at least three (3) working days after he last worked on April 4, 1990. TCC, therefore, was dismissed from liability. The Sixth Circuit agreed that BGL was the most recent employer of the miner for one full year, taking into account the miner’s unpaid sick leave. The Court held that:
Although a stronger argument can be made that a miner is “employed” when on paid sick leave versus unpaid sick leave, we do not believe that the issue of whether the miner received wages while on sick leave is the determinative factor. Rather, the determinative factor is whether an employment relationship continued to exist while the miner was on sick leave.
BGL Mining, slip op. at 8.
Another recent case we had before the Benefits Review Board involved the Department of Labor’s effort to identify the second most recent operator as the “responsible operator” in a case where the most recent employer for more than one year was Blue Diamond Coal Company, which filed for reorganization under Chapter 11 of the Bankruptcy Code. Clark v. Whitaker Coal Corp., BRB Nos. 97-1655 BLA and 97-1655 BLA-A (Oct. 7, 1998), unpublished. We argued on behalf of Whitaker that the Trust Fund must bear liability under the settlement agreement it reached with Blue Diamond. In the settlement agreement, the Department of Labor agreed not to name Blue Diamond as the responsible operator in any federal black lung claim for workers whose employment with Blue Diamond terminated prior to June 19, 1991. The Director construed this as authorizing the Department to identify the next most recent operator as the responsible operator. The administrative law judge and the Board, in construing the bankruptcy settlement agreement between Blue Diamond and the Department of Labor, held that the Department must hold Blue Diamond harmless for any liability resulting from these black lung claims and that the Black Lung Disability Trust Fund must be the sole source of payment for such claims. Therefore, Whitaker was dismissed from liability and liability was imposed on the Trust Fund.
Other recent cases have also resulted in the dismissal of the identified “responsible operator” in favor of Trust Fund liability.
In Venicassa v. Consolidation Coal Co., 137 F.3d 197 (3d Cir. 1998), the Court construed 20 C.F.R. § 725.412(a) as imposing the obligation on the Department of Labor to identify the responsible operator “as soon after filing as the evidence permits.” 137 F.3d at 203. In Venicassa, the Department originally named the wrong operator, resulting in dismissal of that operator by the administrative law judge. The Benefits Review Board remanded the claim for designation of a new responsible operator. The new responsible operator obtained a denial of benefits, which the Board affirmed. On claimant’s appeal to the Third Circuit, the Court reversed and held that the Department of Labor erred by failing to identify the correct responsible operator in the original proceeding. The Court rejected the Department of Labor’s argument that it could name a responsible operator at “any time.” Under these facts, the Court ordered the Trust Fund to pay benefits to the miner based upon the original administrative law judge’s award of benefits.
In Lane Hollow Co. v. Director, OWCP, 137 F.3d 799 (4th Cir. 1998), the responsible operator was dismissed and the Trust Fund was made liable where the Court determined that the Department of Labor improperly delayed notice to the identified responsible operator. In Lane Hollow, the miner, in fact, died prior to notice being provided to the identified responsible operator. The Court held that the inexcusable delay by the Department in notifying the employer of the claim constituted a violation of due process of law by depriving the employer of “the opportunity to mount a meaningful defense.” 137 F.3d at 808.
The Black Lung Benefits Amendment of 1981, Public Law No. 97-119, 95 Stat. 1643 (1981), provided for transfer of liability from mine operators to the Black Lung Disability Trust Fund for certain claims which were denied before March 1, 1978, and approved in accordance with the liberalized benefits criteria adopted by the Black Lung Benefits Reform Act, Public Law No. 95-239, 92 Stat. 95 (1978).
Included in the claims which were to transfer to the Trust Fund were Part B claims which had been denied by the Social Security Administration (SSA) and later awarded under the Reform Act criteria, where the claimant had filed an election card for review of the denied Part B claim under 30 U.S.C. § 945(a). The election card requirement is specifically incorporated into the pertinent regulation at 20 C.F.R. § 725.496(d), which requires the filing of an election card in order for transfer to take place. In Director, OWCP v. Quarto Mining Co., 901 F.2d 532 (6th Cir. 1990), the Court relaxed the requirement for the filing of an election card where there was no evidence demonstrating that an election card actually had been sent to the miner.
In the recent decision in Caney Creek Coal Co. v. Satterfield, 150 F.3d 568 (6th Cir. 1998), the Court declined to extend the holding in Quarto Mining. In the Caney Creek case the Part B claim was denied by SSA in 1973 and an award of benefits was made on a separate Part C claim filed in 1978 without an election card. The Director, in Caney Creek, produced a computer printout that purported to show that an election card had been sent to the miner. Under such facts, the Court declined to allow transfer of liability on the basis that evidence of a timely mailing established a rebuttable presumption that the mailed material was received. 150 F.3d at 573. Thus, unlike Quarto Mining, the record was insufficient to demonstrate a total lack of notice to the claimant.
The Fourth Circuit, in Harman Mining Co. v. Layne, No. 97-1385 (4th Cir. Aug. 27, 1998), rehearing denied (Oct. 28, 1998), refused to apply the reasoning of Quarto Mining. In Harman Mining, the miner had filed a Part B claim, but before any action was taken on the Part B claim he filed a Part C claim. He was later awarded benefits under the Reform Act criteria. The Director could not produce any evidence that an election card was sent to the miner, but the Court still refused to apply the reasoning of Quarto Mining. The Court also ruled that the Part B and Part C claims, although pending simultaneously, did not merge under 20 C.F.R. § 725.309, based upon the Director’s argument that merger can only occur on claims filed after March 1, 1978. (Another remarkable holding by the Fourth Circuit in Harman Mining, unrelated to the transfer of liability issue, was that the interim presumption rebuttal standards under 20 C.F.R. § 727.203(b)(3) were not changed by the Court’s decision in Bethlehem Mines Corp. v. Massey, 736 F.2d 120 (4th Cir. 1984). Thus, even though the hearing was conducted prior to the issuance of Massey, the Court refused to order the record to be reopened to allow the employer to address the Massey rebuttal standards. Compare Peabody Coal Co. v. Ferguson, 140 F.3d 634 (6th Cir. 1998) (wherein the record was ordered to be reopened to give the employer an opportunity to meet new rebuttal standards)). Since Harman Mining was an unpublished decision, it remains to be seen whether the Court will follow the novel rulings in Harman Mining in future decisions.
The Department of Labor proposed sweeping changes in the black lung regulations almost two years ago, on January 22, 1997. The Department conducted extensive hearings and closed the comment period in August 1997. The Department of Labor hoped to take final action on the proposed regulations during June 1998. 62 Fed. Reg., at 57726 (Oct. 29, 1997). With the passage of time, it becomes more uncertain whether the proposed regulations, in their current form, ever will be finalized. (For a discussion of the proposed regulations, see the March 1998 edition of the Black Lung Newsletter.)
We have not attempted to cover all of the recent case law in this edition of the Black Lung Newsletter. If you have any questions regarding specific issues, please give us a call. As always, your comments and suggestions for topics to be addressed in future editions are greatly appreciated.
— Ronald E. Gilbertson
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