Bentley v. Kentucky Elkhorn Coal Co., BRB 09-0635 BLA
| Decision Date | 29 March 2011 |
| Docket Number | 10-0453 BLA,BRB 09-0635 BLA,10-0452 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ANITA BENTLEY Widow of OTIS BENTLEY Claimant-Respondent v. KENTUCKY ELKHORN 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UNPUBLISHED OPINION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 on Remand Award of Benefits, the Supplemental Decision and Order, and the Order Denying Reconsideration of Daniel F. Solomon, Administrative Law Judge, United States Department of Labor.
William Lawrence Roberts, Pikeville, Kentucky, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C. for employer.
Barry H. Joyner (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, 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: SMITH, HALL, and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order on Remand Award of Benefits the Supplemental Decision and Order awarding attorney's fees, and the Order Denying Reconsideration of the fee award (06-BLA-5737, 07-BLA-5333) of Administrative Law Judge Daniel F. Solomon rendered on a miner's duplicate claim and a survivor's claim filed pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) () (the Act). This case has been before the Board previously. The complete procedural history of this case is set forth in the Board's prior decisions. O.B. [Bentley] v. Ky. Elkhorn Coals, Inc., BRB No. 08-0383 (Feb. 19, 2009)(unpub.); Bentley v. Ky. Elkhorn Coals, Inc., BRB No. 00-0140 (Apr. 6, 2001)(unpub.); Bentley v. Ky. Elkhorn Coals, Inc., BRB No. 98-0140 (May 21, 1999)(unpub.).
In the last appeal, relevant to the miner's duplicate claim, the Board vacated the administrative law judge's findings that legal pneumoconiosis and a material change in conditions were established pursuant to 20 C.F.R. §§718.202(a)(4), 725.309(d) (2000). [1] The Board instructed the administrative law judge that, on remand, in considering whether the evidence is sufficient to establish a material change in conditions pursuant to 20 C.F.R §725.309(d) (2000), he must determine whether the new evidence differs qualitatively from the evidence submitted with the previously denied claim, in accordance with the holding in Sharondale Corp. v. Ross, 42 F.3d 993, 999, 19 BLR 2-10, 2-21 (6th Cir. 1994). Additionally, because of errors by the administrative law judge in his analysis of the evidence, the Board instructed him to reconsider the medical opinion evidence relevant to the existence of pneumoconiosis. Consequently, the Board also vacated the administrative law judge's finding of total disability due to pneumoconiosis, at 20 C.F.R. §718.204(c), and his finding as to the date from which benefits commence, pursuant to 20 C.F.R. §725.503(b). With respect to the survivor's claim, the Board also vacated the administrative law judge's finding that legal pneumoconiosis was established pursuant to Section 718.202(a)(4), and, consequently, vacated the administrative law judge's finding that claimant established that the miner's death was due to pneumoconiosis, pursuant to 20 C.F.R. §718.205(c).
On remand, with respect to the miner's claim, the administrative law judge found that claimant established a material change in conditions pursuant to 20 C.F.R. §725.309(d) (2000) by establishing the existence of clinical and legal pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2), (4), arising out of coal mine employment, pursuant to 20 C.F.R. §718.203(b). The administrative law judge also found that total disability due to pneumoconiosis was established pursuant to 20 C.F.R. §718.204(c). Accordingly, after determining, on remand, that the medical evidence did not establish when the miner became totally disabled due to pneumoconiosis, the administrative law judge awarded benefits on the miner's claim from July 1995, the month in which the miner filed his duplicate claim.
Considering the survivor's claim on remand, the administrative law judge found that clinical pneumoconiosis was established pursuant to 20 C.F.R. §718.202(a)(2), [2]and that the miner's death was due to pneumoconiosis, pursuant to 20 C.F.R. §718.205(c). Consequently, the administrative law judge awarded benefits on the survivor's claim.
On appeal, employer challenges the administrative law judge's findings pursuant to Sections 725.309(d) (2000), 718.202(a)(4), 718.204(c), and 718.205(c). Additionally, employer challenges the administrative law judge's determination as to the date from which benefits commence in the miner's claim. Employer also challenges the administrative law judge's award of attorney fees, and the denial of employer's request for reconsideration of the attorney fee award. Employer further contends that the administrative law judge's decision reflects bias, and that, therefore, the award of benefits must be vacated and the case remanded with instructions that it be assigned to a new administrative law judge “for a fresh look.” Employer's Brief at 38-40. Claimant responds, urging affirmance of the administrative law judge's decision. The Director, Office of Workers' Compensation Programs (the Director), declined to file a substantive response brief, but urges affirmance of the administrative law judge's finding as to the date from which benefits commence, if the award of benefits in the miner's claim is affirmed.
Claimant's counsel has filed a fee petition for work performed before the Board, in this appeal and the prior appeal, together with a motion for interest and a motion for fees incurred in defense of his fee petition. Employer has filed objections to the fee petition and the motions.
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. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
By Order dated March 30, 2010, the Board provided the parties with the opportunity to address the impact on this case, if any, of Section 1556 of Public Law No. 111-148, which amended the Act with respect to the entitlement criteria for certain claims. [3] The parties have responded.
The Director asserts, correctly, that Section 1556 is not applicable to the miner's claim because it was filed before January 1, 2005. However, the Director notes, Section 1556 may affect the survivor's claim because it was filed after January 1, 2005, claimant testified that the miner worked in the coal mines for about fifteen years, and employer does not contest that the miner had a totally disabling respiratory impairment at the time of his death. Director's Brief at 4. In response, claimant states that “there is a good possibility that [claimant's] claim is affected by” the amendments, and she moves that “an automatic entitlement” be granted. Claimant's Motion at 2. Employer responds, agreeing with the Director that Section 1556 is not applicable to the miner's claim. Employer's Brief at 2 n.1. Employer further asserts that, even if the award of benefits in the miner's claim is affirmed, claimant will not be automatically entitled to survivor's benefits based on the recent amendment to Section 422(l) of the Act, 30 U.S.C. §932(l), because the operative date for determining eligibility for survivor's benefits is the date the miner's claim was filed, not the date the survivor's claim was filed. Thus, employer contends that, because the miner filed his claim before January 1, 2005, the automatic entitlement provisions of Section 932(l) do not apply to the survivor's claim. Employer further contends that, in any event, the record does not reflect that claimant has been credited with the requisite fifteen years of coal mine employment. Employer's Brief at 2 n.1.
Based upon the parties' responses, and our review, we conclude that Section 1556 may affect the survivor's claim. As will be discussed below, we cannot affirm the administrative law judge's award of benefits in the survivor's claim. Because we must remand this case for the administrative law judge to reconsider the merits of entitlement in the survivor's claim, we will also instruct the administrative law judge, on remand, to consider this case in light of the amendments to the Act.
We first address employer's challenge to the administrative law judge's award of benefits in the miner's claim. To be entitled to benefits under the Act, claimant must demonstrate by a preponderance of the evidence that the miner was totally disabled due to pneumoconiosis arising out of coal mine employment. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes entitlement. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987).
Where a miner files a claim for benefits more than one year after the final denial of a previous claim, the duplicate claim must also be denied unless the administrative law judge finds that there has been a “material change in conditions” since the denial of the previous claim. 20 C.F.R §725.309(d) (2000). In this case, the miner's prior claim was denied because he failed to establish the existence of pneumoconiosis. Director's Exhibit 36. Consequently, claimant was required to submit new evidence...
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