Dalton v. Office of Workers' Comp. Programs

• Decision Date: 20 December 2013
• Docket Number: No. 13–1243.,13–1243.
• Parties: Michael DALTON, et al., Petitioners–Appellants, v. OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Frontier–Kemper Constructors, Inc., Respondents–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

738 F.3d 779

Michael DALTON, et al., Petitioners–Appellants,

v.OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Frontier–Kemper Constructors, Inc., Respondents–Appellees.

No. 13–1243.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 12, 2013.

Decided Dec. 20, 2013.

Anne M. Davis, Attorney, Johnson, Jones, Snelling, Gilbert & Davis, Chicago, IL, for Petitioners–Appellants.

Sean G. Bajkowski, Attorney, Department of Labor, Black Lung and Longshore Legal Services Division, Rita A. Roppolo, Attorney, Department of Labor, Office of the Solicitor, Washington, DC, Mary Lou Smith, Attorney, Howe, Anderson & Steyer, Washington, DC, for Respondents–Appellees.

Before WOOD, Chief Judge, and MANION and TINDER, Circuit Judges.

WOOD, Chief Judge.

For almost 15 years William Dalton and, after his death eight years into the proceedings, his survivors have been seeking benefits under the Black Lung Benefits Act (the Act), 30 U.S.C. §§ 901–45. They may have thought that their quest was almost over when, in August 2011, an Administrative Law Judge (ALJ) ruled in favor of Mr. Dalton's children in all respects. But they would have been wrong. On appeal to the Department of Labor's Benefits Review Board (the Board), the children (Michael Dalton, Sandi Collins, Kathy Moudy, and Joyce Gillihan, referred to here as “the Children”) won some points but lost on the critical issue of the onset date of their father's disease—and thus the date on which their benefits would commence.

The employer, respondent Frontier–Kemper Constructors, Inc. (Frontier), has not filed a petition for review of the Board's decision, but the Children have. They challenge only the Board's decision to modify, in a way unfavorable to them, the date on which the benefits began. In a back-door way, Frontier attacks the Board's decision to permit the Children to be substituted for Mr. Dalton as parties; it argues that they lack standing because (it says) they are not real parties in interest under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 921(c), as incorporated by the Act, 30 U.S.C. § 932(a). We find no merit to Frontier's position. On the central question of onset date, we conclude that substantial evidence supported the ALJ's finding that August 1991 marked the time of onset for Mr. Dalton's total disability on account of pneumoconiosis. We therefore grant the Children's petition for review and remand this case to the Board for reinstatement of the award of benefits using August 1991 as the date by which the claimant's total disability began, and thus the date for the commencement of benefits.

I

Mr. Dalton worked in coal mine construction jobs for at least 22 years, from 1957 to August 1991. He worked on both conventional and “raise-bored” shafts, both of which involve cutting through rock and coal. Through affidavits, Mr. Dalton confirmed that he was exposed to substantial amounts of coal and rock dust throughout his employment. The last 16 years of his employment were at Frontier. His work was arduous and over time he developed trouble breathing. In August 1991 he quit his job because of his difficulty breathing, and he was never employed again.

Mr. Dalton filed a claim for benefits under the Act on June 1, 1999. Frontier opposed the claim and the District Director of the Office of Workers' Compensation proposed a denial in February 2000. Upon Mr. Dalton's request, the case was transferred to the Office of the Administrative Law Judges and submitted on the record without a hearing. On October 14, 2003, an ALJ awarded benefits, finding that Mr. Dalton was a “miner” for statutory purposes and that Frontier was the “responsible operator.” After weighing the medical evidence, the ALJ found that Mr. Dalton had established clinical pneumoconiosis, based on the opinions of two pulmonary experts, Drs. Cohen and Dias. The ALJ rejected the contradictory opinion of Frontier's expert, Dr. Selby, as “unreasoned.” The one problem, from Mr. Dalton's standpoint, was that the ALJ ruled that he could not determine the date of onset of total disability on account of pneumoconiosis. That meant, pursuant to 20 C.F.R. § 725.503(b), that Mr. Dalton's benefits began in June 1999, the month and year in which he filed his claim.

Frontier appealed. Although the Board accepted the ALJ's evaluations of the three experts, it vacated the ALJ's finding that Mr. Dalton had established clinical pneumoconiosis, finding that the ALJ had not properly evaluated the x-rays and CT scans in the record. On remand, in an opinion issued on April 3, 2006, the ALJ again awarded benefits beginning in June 1999. Frontier again appealed. On April 27, 2007, the Board affirmed the ALJ's findings in part but vacated his finding that Mr. Dalton had established total disability on account of “legal pneumoconiosis.” The case was once again remanded.

By this time, the original ALJ had retired, and so the case was reassigned to a new ALJ, who awarded benefits on Au gust 29, 2008. The new ALJ reweighed the evidence and found that Mr. Dalton had established both clinical and legal pneumoconiosis and that his total respiratory disability was the result of his “legal” pneumoconiosis—in other words, his chronic obstructive pulmonary disease (COPD) was caused in part by his exposure to coal-mine dust. Like the earlier ALJ, the new ALJ credited Mr. Dalton's experts and discredited the contrary opinions of Dr. Selby for Frontier and Dr. Carandang for the Department of Labor. He ordered benefits to begin on June 1, 1999.

Mr. Dalton, unfortunately, did not live to see the outcome of his case: he died on March 27, 2007. At that point the Children moved to substitute as claimants, but the ALJ denied their motion in the August 29, 2008, ruling. Frontier appealed the award of benefits to the Board, and the Children cross-appealed the denial of the motion to substitute. While its administrative appeal was pending, Frontier moved to remand the case to the District Director and a bit later to dismiss its appeal. The Board obliged, dismissing both the appeal and the cross-appeal on February 26, 2009.

The Children then filed a renewed motion to substitute on March 20, 2009, and both Frontier and the Children submitted additional evidence. The District Director did not rule on the motion to substitute, but on August 4, 2009, he found that the ALJ had made no mistake in awarding benefits and denied any modification. Frontier again objected and asked that the case be forwarded to an ALJ.

At that point, the case was assigned to its third ALJ, Judge Craft. On March 31, 2010, the Children once again moved to substitute. Judge Craft granted the motion in an order dated June 23, 2010. Frontier fired off an interlocutory appeal to the Board, but the Children promptly moved to dismiss. The Board agreed that the appeal was premature.

The case then proceeded before Judge Craft. Since it was Frontier that had filed for modification, it had the burden of establishing a mistake in the earlier determinations of fact. Judge Craft found that Frontier failed to meet this burden with respect to the decision to award benefits. But she did not stop there. Sua sponte, she found that the prior ALJs had been mistaken when they found no evidence for an onset date earlier than Mr. Dalton's date of filing. She explained that while the filing date is used as the onset date of total disability on account of pneumoconiosis when the true onset date cannot be determined, the medical evidence in Mr. Dalton's case adequately established an earlier date of total disability: June 1991, when pulmonary function tests demonstrated total respiratory disability for purposes of the relevant regulations. Noting that Mr. Dalton stopped working in August 1991, and citing Mr. Dalton's medical reports, Judge Craft found that there was no time after August 1991 that Mr. Dalton was not totally disabled. She thus modified the date for commencement of benefits from June 1999 back to August 1991. Judge Craft also awarded attorneys' fees and expenses to Petitioners' counsel. Frontier appealed both awards to the Board.

On December 7, 2012, the Board affirmed Judge Craft's decision to substitute the Children as parties to the claim. It also affirmed her denial of Frontier's request for modification of the award, insofar as it established eligibility for benefits in general. The Board rejected the argument that Judge Craft abused her discretion when she sua sponte took up the question of modification of the date for commencement of benefits. But it vacated Judge Craft's finding that the onset date was August 1991. Under the regulations, benefits are payable as of the month of onset of total disability on account of pneumoconiosis or, if the evidence does not establish the month of onset, as of the month during which the claim was filed, unless medical evidence that was credited by the ALJ establishes that the miner was not totally disabled from pneumoconiosis at any later time. The Board wrote that because “neither Dr. Beck nor Dr. Cohen opined that the miner was disabled due to pneumoconiosis in 1991” it had to vacate the ALJ's designation of August 1991 as the date for the commencement of benefits. The Board thought that there was no medical evidence that reflected the date upon which Mr. Dalton became totally disabled on account of pneumoconiosis, and thus that his benefits were limited to the period beginning with the month in which he filed his original claim. As a result, the Board changed the commencement of benefits back from August 1991 to June 1999, the month and year in which Mr. Dalton filed his claim. The Board affirmed Judge Craft's award of attorneys' fees.

On February 4, 2013, the Children filed a petition for review of the Board's vacation of Judge Craft's finding that benefits should commence as of August 1991. Frontier did not file a cross-petition.

II

Before addressing the merits of the ...