Pothering v. Parkson Coal Co.

• Decision Date: 23 November 1988
• Docket Number: No. 87-3854,87-3854
• Citation: 861 F.2d 1321
• Parties: Irma POTHERING (Widow of Vincent Pothering), Respondent, v. PARKSON COAL COMPANY and Constitution State Service Co., Employer/Carrier, Petitioners, and Director, Office of Workers' Compensation Programs United States Department of Labor, Party-in-Interest.
• Court: U.S. Court of Appeals — Third Circuit

Page 1321

861 F.2d 1321

Irma POTHERING (Widow of Vincent Pothering), Respondent, v. PARKSON COAL COMPANY and Constitution State Service Co., Employer/Carrier, Petitioners, and Director, Office of Workers' Compensation Programs United

States Department of Labor, Party-in-Interest.

No. 87-3854.

United States Court of Appeals,

Third Circuit.

Argued June 15, 1988.

Decided Nov. 23, 1988.

Joseph A. McKenna (argued), Williamson, Friedberg and Jones, Pottsville, Pa., for employer/carrier, petitioners.

Roscoe Bryant, III, Thomas Holzman, Michael Denney (argued), U.S. Dept. of Labor, Washington, D.C., for party-in-interest.

Carolyn M. Marconis (argued), Law Offices of Charles A. Bressi, Jr., Pottsville, Pa., for respondent.

Before MANSMANN, SCIRICA and COWEN, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Petitioners Parkson Coal Company and Constitution State Service Company ¹ ("Parkson") appeal from a decision of the Benefits Review Board ("the Board") denying Parkson's motion for reconsideration of an order dismissing Parkson's appeal from an Administrative Law Judge's award of survivor's benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-45 (1982). We must determine whether the Board erred in ordering payment of a benefits award based upon Mr. Pothering's death due to pneumoconiosis, or "black lung disease."

The principal issue raised by this appeal is whether an eligible survivor of a deceased miner who had filed a claim during his lifetime prior to 1982, the year the Act was amended, is required to file a new claim after the miner's death.

Under the Act, the dependent survivor of a deceased miner may be eligible for either of two types of survivor's benefits. The first type arises where a miner is totally disabled during his lifetime by pneumoconiosis. A dependent survivor of a totally disabled miner is derivatively entitled to the same disability benefits during her lifetime to which the miner would have been entitled during his lifetime. 30 U.S.C. Sec. 922. The second type is awarded where the miner in fact dies from pneumoconiosis. Id.

In 1981, the Act was substantially amended. The Act still provided, however, that:

In no case shall the eligible survivors of a miner who was determined to be eligible to receive benefits under [the Black Lung Benefits Act] at the time of his or her death be required to file a new claim for benefits, or refile or otherwise revalidate the claim of such miner, except with respect to a claim filed under this part on or after the effective date of the Black Lung Benefits Amendments of 1981.

30 U.S.C. Sec. 932(l) (1982), as amended by Black Lung Benefits Revenue Act of 1981, Pub.L. No. 97-119, Sec. 203(a)(6), 95 Stat. 1635, 1644 (1981).

We hold that Sec. 422(l) applies to both types of survivor's benefits and that an eligible survivor of a miner who filed a claim during his lifetime before January 1, 1982, the effective date of the 1981 amendments, need not file a new claim after the miner's death. We will affirm the decision of the Benefits Review Board.

I.

Vincent Pothering worked in the coal mines of Pennsylvania for 17 years. On May 23, 1978, suffering from the black lung disease which would eventually cause his death, Mr. Pothering filed a claim for disability benefits under the Act. The Deputy Commissioner of OWCP issued a Notice of Initial Finding on May 16, 1980, informing Parkson that Mr. Pothering had been found totally disabled due to pneumoconiosis as of May 1978, that Mrs. Pothering was his eligible dependent, and that Parkson was the responsible operator. Parkson filed a timely controversion to the finding, the Deputy Commissioner affirmed her determination, and the matter was assigned to an Administrative Law Judge ("ALJ"). On January 24, 1984, at a hearing, the ALJ received exhibits but heard no testimony.

On April 20, 1984, while the matter was still pending before the ALJ, Mr. Pothering died. Mrs. Pothering notified the Department of his death and, on April 25, 1984, completed Form CM-1089 ("Survivor's Notification of Beneficiary's Death"). As a result, on August 21, 1984, the Deputy Commissioner notified Parkson of Mr. Pothering's death. The notice ² recited the text of Sec. 422(l) and stated the following:

Based upon the available evidence, I find that the miner's survivor(s) satisfy the conditions set forth in 20 CFR 725.212 et seq. ³ It has been initially determined ... that the survivor(s) are eligible for benefits under the Act beginning with the month in which the miner's death occurred. Accordingly, you should begin payment of benefits within thirty (30) days of the date of this letter and, upon making the first payment, immediately complete and return the enclosed [forms] to this office. If both forms are not returned to this office, the survivor(s) claim will be joined with the deceased miner's claim for resolution of outstanding issues. If you wish to contest the initial determination, you must file a controversion ... with this office within thirty (30) days of the date of this notice.

App. at 20. Copies of this notice were sent to Mrs. Pothering, to Mr. Pothering's attorney, to Parkson, to Travelers Insurance Company, to the Office of ALJs, and to the Labor Department's Office of the Solicitor in Philadelphia--but not to counsel for Parkson. Parkson did not file a controversion in response to the August 21 notice.

Earlier, on August 15, 1984, the ALJ approved the parties' agreement to have the case decided on the record. In view of Mr. Pothering's death, the record was left open until September 25, 1984, to permit Parkson to depose Mrs. Pothering. The transcript of her deposition was submitted to the ALJ.

On December 12, 1984, the ALJ issued his Decision and Order. The ALJ explained that applying the regulations in 20 C.F.R. Sec. 727.203, together with the X-ray evidence, provided rebuttable presumptions that Mr. Pothering was totally disabled at the time of his death and that his death was due to pneumoconiosis. ⁴ He then found that while Parkson had rebutted the presumption of Mr. Pothering's total disability, it had not rebutted the presumption of death due to pneumoconiosis. Consequently, the ALJ awarded Mrs. Pothering survivor's benefits based upon the cause of Mr. Pothering's death.

Parkson appealed to the Board, which awarded Mrs. Pothering benefits on grounds other than those cited by the ALJ. In its decision, the Board held that under Sec. 422(l), Mrs. Pothering was not required to file a separate claim when her husband died. In light of that provision, the Board concluded that:

After careful review of the record, we find no evidence of a controversion filed by [Parkson] in response to the deputy commissioner's August 21, 1984 award of survivor benefits or of a challenge to the widow's status as an eligible survivor during the pendency of this case before the administrative law judge. We therefore hold that the deputy commissioner's August 21, 1984 survivor's award became final and remained at the deputy commissioner's level upon [Parkson's] failure to controvert the survivor's claim within thirty days.... [T]he administrative law judge never attained jurisdiction of the survivor's claim ...

(footnote omitted). App. at 55. The Board vacated the ALJ's order awarding benefits and remanded to the deputy commissioner "for payment of the award of benefits on the survivor's claim." ⁵ Id. Parkson filed a motion for reconsideration, which the Board denied. This appeal followed.

II.

Parkson argues that the Board erred in holding that Mrs. Pothering's award became final when Parkson failed to controvert the Deputy Commissioner's August 21, 1984 notice. Specifically, Parkson maintains that the Board erred in deciding that Mrs. Pothering was not required to file a separate claim for survivor's benefits based on Mr. Pothering's death due to pneumoconiosis. Parkson also contends that its counsel of record was entitled to service of that notice and, because he received none, that the 30-day period for filing a controversion never began to run. In addition, Parkson argues that the ALJ adjudicated the claim for death due to pneumoconiosis under the improper standard--contending that because Mr. Pothering died in 1984, the ALJ should have applied the standards of 20 C.F.R. 718, which governs claims filed after March 31, 1980, rather than the standards of 20 C.F.R. 727. Finally, Parkson maintains that, in any event, the award was not based on substantial evidence. Parkson requests that we reverse the orders of both the Board and the ALJ; alternatively, it argues for a remand to the OWCP to permit the company to develop a controversion to the survivor's claim for death due to pneumoconiosis.

As a party-in-interest, the Director of the OWCP acknowledges that under Sec. 422(l), Mrs. Pothering was not required to file a separate claim for survivor's benefits based upon her husband's total disability at the time of death, but did have to file a separate claim for benefits based upon her husband's death due to pneumoconiosis. Consequently, the Director argues that since the record contained no separate claim for the latter type of benefits, the ALJ erred in making an award based upon death due to pneumoconiosis. Similarly, the Director maintains that the Board erred in holding that Parkson failed to controvert an award for death due to pneumoconiosis, because the August 21, 1984 letter from the deputy commissioner did not raise the issue. The Director requests that we reverse the orders of both the Board and the ALJ, and remand to the OWCP for development of a survivor's claim based upon the cause of Mr. Pothering's death.

For her part, Mrs. Pothering maintains that the Board's decision should be affirmed. She contends that she was not required to file a new survivor's claim asserting entitlement based upon her husband's death due to pneumoconiosis. Further, she argues that it was unnecessary to serve Parkson's...