B.C. v. Little David Coal Co., BRB 07-0696 BLA
| Decision Date | 26 November 2008 |
| Docket Number | BRB 07-0696 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | B.C. Claimant-Respondent v. LITTLE DAVID COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Granting Modification and Awarding Benefits and the Supplemental Decision and Order of Daniel F Solomon, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe (Wolfe, Williams and Rutherford), Norton, Virginia for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington D.C., for employer.
Helen H. Cox (Gregory F. Jacob, Solicitor of Labor; Rae Ellen Frank James, Acting Associate Solicitor; Michael J. Rutledge Counsel for Administrative Litigation and Legal Advice) Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Granting Modification and Awarding Benefits and the Supplemental Decision and Order (2006-BLA-05277) of Administrative Law Judge Daniel F Solomon on a claim filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act). [1] The relevant procedural history of the case is as follows. Claimant filed a claim for benefits on February 15, 1991, which was denied by the district director on the grounds that claimant failed to establish any of the requisite elements of entitlement. Director's Exhibit 1. Claimant requested modification, and the case went to hearing before Administrative Law Judge Stuart A. Levin, who issued a Decision and Order denying benefits on September 19, 1994. Id. Judge Levin found that claimant was totally disabled, but that he failed to establish the existence of pneumoconiosis or that he was totally disabled by pneumoconiosis. Id. Claimant filed another modification request on August 3, 1995, which was denied by Judge Levin on May 13, 1996. Id. Claimant filed a third request for modification on March 26, 1997, which was denied by Administrative Law Judge Richard A. Morgan on the grounds that the evidence was insufficient to establish the existence of pneumoconiosis and disability causation. Id. On May 13, 1999, claimant submitted additional medical evidence to the district director and that submission was construed to be a fourth request for modification. Id. Following a hearing, Administrative Law Judge Edward Terhune Miller denied benefits on October 16, 2001, because the evidence failed to establish the existence of pneumoconiosis. Id. A fifth request for modification was filed by claimant on October 9, 2002, which was denied by the district director in a Proposed Decision and Order dated June 24, 2003. Id. Thereafter, claimant filed an application for benefits on July 26, 2004, which was processed by the district director as a subsequent claim, and is the subject of this appeal. Director's Exhibit 2.
In his Decision and Order dated April 12, 2007, the administrative law judge determined that claimant's July 26, 2004 application was not a subsequent claim but a timely request for modification. Pursuant to 20 C.F.R. §725.310 (2000), the administrative law judge found no mistake in a prior determination of fact, but he determined that the new evidence was sufficient to establish a change in conditions, as it established the existence of legal pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4) and that claimant was totally disabled by pneumoconiosis pursuant to 20 C.F.R. §718.204(c). Accordingly, the administrative law judge awarded benefits, commencing October 1, 2004. On October 3, 2007 the administrative law judge awarded attorney fees to claimant's counsel in the amount of $4, 750.00.
Employer appeals, asserting that the administrative law judge erred in determining that claimant's July 26, 2004 application was not a subsequent claim but a request for modification [2]of the denial of his 1991 claim. In the alternative, employer argues that even if the July 26, 2004 application is a proper modification request, the administrative law judge erred by failing to consider whether claimant acted in good faith in pursuing his modification request and whether allowing him to pursue a fifth modification request renders justice under the Act. Employer also argues that the administrative law judge erred in awarding benefits because he improperly shifted the burden to employer to prove that claimant does not suffer from legal pneumoconiosis and that he is not totally disabled due to pneumoconiosis. Claimant responds, urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a letter brief, asserting that the administrative law judge properly determined that claimant's July 26, 2004 application was a timely modification request. The Director also asserts that it is “implicit” in the administrative law judge's award that allowing claimant to pursue another modification petition renders justice under the Act. [3] Director's Brief at 4. The Director takes no position on the merits of claimant's entitlement to benefits. Employer has also filed a reply to the Director's brief.
Employer also appeals the administrative law judge's award of attorney fees. Employer contends that the administrative law judge erred in determining the appropriate hourly rate and the number of hours that are compensable for legal work performed by claimant's counsel. Claimant's counsel responds, urging affirmance of the administrative law judge's award of attorney fees. The Director has declined to file a brief on the propriety of the attorney fee award.
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law. [4] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
We first address employer's contention that this case involves a subsequent claim and not a modification request. The record reflects that the district director issued a Proposed Decision and Order Denying Modification on June 24, 2003, which notified the parties that “[if] no request for formal hearing is received within 30 days from the date of the Proposed Order Denying Modification, the proposed order will be deemed to have been accepted by all parties and the finding set forth herein shall become final.” Director's Exhibit 1. Claimant did not request a hearing within the thirty day period and took no further action on the denial of his modification request until he filed an application for benefits on July 26, 2004. Director's Exhibit 3. The administrative law judge determined that claimant's July 26, 2004 application constituted a timely request for modification and not a subsequent claim. See 20 C.F.R. §725.309(c), (d). The administrative law judge reasoned that because claimant did not request a hearing or a revision of the district director's June 24, 2003 Proposed Decision and Order, that decision became final at the end of the thirty day appeal period, or July 24, 2003, after which claimant had one-year to request modification. Decision and Order at 11. Because the one year period for requesting modification ended on Saturday, July 24, 2004, the administrative law judge applied 20 C.F.R. §725.311 and found that the deadline for requesting modification automatically extended to Monday, July 26, 2004. Id. Thus, the administrative law judge adjudicated the claim as a modification request pursuant to Section 725.310 (2000).
Employer contends that the administrative law judge erred in extending the period for requesting modification in this case based upon “the effective date” of the district director's June 24, 2003 proposed decision and order denying modification, or July 24, 2003. We disagree. The regulation at 20 C.F.R. §725.419(a) states that “[w]ithin 30 days after the date of issuance of a proposed decision and order, any party may, in writing, request a revision of the proposed decision and order or a hearing.” 20 C.F.R. §725.419(a). If no party requests a hearing or a revision of the proposed decision and order, the regulation of 20 C.F.R. §725.419(d) provides that “the proposed decision and order shall become a final decision and order, which is effective upon the expiration of the applicable 30-day period.” 20 C.F.R. §725.419(d) (emphasis added).
As the Director correctly points out, the certificate of service for the June 24, 2003 proposed decision and order advised the parties that if claimant did not request a hearing, the decision and order would become effective upon the expiration of the 30 day period. Director's Exhibit 1. Thus, “by operation of the regulation” at Section 725.419(d), the administrative law judge properly determined that the proposed decision and order became effective on July 24, 2003, and relied on July 24, 2003 as the starting date for the one-year period for requesting modification. Director's Brief at 3; see also Wooten v. Eastern Associated Coal Corp., 20 BLR 1-20 (1996).
Furthermore Section 725.311(d) provides that in computing any period of time described in 20 C.F.R. Part 725, “[t]he last day of the period shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period extends until the next day which is not a Saturday, Sunday, or legal holiday.” 20 C.F.R. §725.311(d). In this case, because...
To continue reading
Request your trial