Billups v. Southern Appalachian Coal Co., BRB 94-0243 BLA
| Decision Date | 29 November 1995 |
| Docket Number | BRB 94-0243 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | CLAYTON M. BILLUPS Claimant-Petitioner v. SOUTHERN APPALACHIAN COAL COMPANY Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Robert J. Feldman Administrative Law Judge, United States Department of Labor.
Roger D. Forman (Forman & Crane), Charleston, West Virginia, for claimant.
Henry C. Bowen and Sean Harter (Robinson & McElwee), Charleston West Virginia, for employer.
J Matthew McCracken (Marvin Krislov, Deputy Solicitor for National Operations; Donald S. Shire, Associate Solicitor Rae Ellen Frank James, Deputy Associate Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, the United States Department of Labor.
Before: SMITH, BROWN and DOLDER, Administrative Appeals Judges.
DECISION and ORDER ON RECONSIDERATION
The Director, Office of Workers' Compensation Programs, [the Director] has filed a motion for reconsideration of the Board's Decision and Order in the captioned case see 20 C.F.R. §802.407, in which the Board modified in part and vacated in part the Decision and Order (92-BLA-0859) of Administrative Law Judge Robert D. Feldman awarding benefits 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) and remanded the case for reconsideration. Originally, the administrative law judge awarded benefits against employer under 20 C.F.R. Part 718, to be augmented by claimant's dependent spouse. Employer appealed, contending that it is not the properly designated responsible operator and contending that the administrative law judge erred in finding entitlement to benefits established under Part 718. The Board subsequently granted the Director's Motion to Hold Case in Abeyance pending the decision by the United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, in Director, OWCP v. Trace Fork Coal Co. [Matney], 67 F.3d 503, 19 BLR 2-290 (4th Cir. 1995), relevant to employer's contention that it is not the properly designated responsible operator. Billups v. Southern Appalachian Coal Co., BRB No. 94-0243 BLA (Apr. 19, 1994)(unpub. order). In light of the court's issuance of its decision in Matney, the Board issued its Decision and Order. Billups v. Southern Appalachian Coal Co., BRB No. 94-0243 BLA (Nov. 29, 1995)(unpub.).
Although whether the named employer was the properly designated responsible operator was an issue before the administrative law judge, see Director's Exhibit 36, the Board noted that the administrative law judge did not address it. In addition, the Board noted that a review of the record reveals that claimant indicated that he had more recently been employed as a coal miner, for over one year, with both Olentangy, Ltd., and with Corvette Coal Company, see Director's Exhibit 2; see also Hearing Transcript at 18-19, 22, 27-28, 37-38, but inasmuch as the Department of Labor's investigation revealed that both were not insured and were no longer in business or viable, the Director stated that neither was named as potential responsible operators capable of assuming liability, see 20 C.F.R. §725.492(b), see Director's Exhibit 37. However, as the record failed to indicate whether Olentangy, Ltd., and Corvette Coal Company were ever insured at any time and was devoid of any evidence in regard to the officers of these unnamed potential responsible operators and their capability to assume payment pursuant to 20 C.F.R. §725.495(a), the Board vacated the administrative law judge's determination that benefits were payable by employer and remanded the case for reconsideration.
On remand, the Board instructed the administrative law judge to consider whether employer was the properly designated responsible operator and/or whether the Director effectively proceeded against all potential putative responsible operators and their respective officers, as mandated by the regulations at 20 C.F.R. §§725.412(d) and 725.495(a), and thereby established a proper basis for relieving either Olentangy, Ltd., or Corvette Coal Company and their respective officers of their potential liability pursuant to Sections 725.492 and 725.495(a), in accordance with the holdings enunciated in Matney, supra, England v. Island Creek Coal Co., 17 BLR 1-141 (1993) and Crabtree v. Bethlehem Steel Corp., 9 BLR 1-354, 1-357 (1984). The Board also instructed the administrative law judge to determine on remand, if possible, whether either Olentangy, Ltd., or Corvette Coal Company were insured at the time of claimant's employment with them up to the time that Olentangy, Ltd., was forfeited by the West Virginia state attorney general's office in 1982 and the time that Corvette Coal Company's corporate charter was dissolved by court order on August 22, 1984, respectively, see Director's Exhibit 37. Finally, inasmuch as no authority exists requiring a named employer/responsible operator to affirmatively establish that another potential alternative responsible operator has the ability to pay under the Act and regulations, the Board noted that where a named employer/responsible operator, such as employer in this case, establishes that the claimant has been employed with a subsequent employer/operator for one calendar year, the named employer has completely and successfully completed its defense that it should not be liable for benefits, see England, supra. Thus, inasmuch as neither Olentangy, Ltd., or Corvette Coal Company or their respective officers were named as potential responsible operators at any point in this proceeding, although the Director already had full opportunity to do so, the Board instructed the administrative law judge that if he determines that employer is not the properly designated responsible operator on remand, liability for payment in this matter rests with the Black Lung Disability Trust Fund [the Trust Fund], see Matney, supra; England, supra; Crabtree, supra.
Finally, in regard to the administrative law judge's findings on the merits, the Board vacated the administrative law judge's findings under Sections 718.202(a)(1), (4), 718.203(b) and 718.204(b), (c), and remanded the case for reconsideration. In addition, the Board instructed the administrative law judge that, inasmuch as a review of the record reveals that claimant also apparently has a dependent son, see Director's Exhibits 1, 9, if he again finds claimant entitled to benefits on remand, he should determine whether claimant's son is his dependent for the purposes of augmenting benefits, see 20 C.F.R. §§725.208 and 725.209.
The Director now moves for reconsideration of the Board's decision to instruct the administrative law judge to also consider on remand whether the Director not only effectively proceeded against all potential putative responsible operators, but against their respective officers as well and to consider the officers' capability to assume payment pursuant to Section 725.495(a). The Director also moves for reconsideration of the Board's holding that if employer establishes that claimant was employed with a subsequent employer for one calendar year, employer has completely and successfully completed its defense that it should not be liable for benefits in accordance with the holding in England, supra. Neither employer nor claimant have responded to the Director's motion.
The Director contends that Section 725.495(a), implementing Section 423(d)(1) of the Act, 30 U.S.C. §933(d), [1] sets forth a procedure for the enforcement of a penalty against an employer and its officers for failing to secure the payment of benefits that is relevant only after benefits on a claim against employer have been awarded, and is not relevant to and/or is distinct from the procedures for identifying the properly designated responsible operator in a claim prior to an award of benefits. The Director further contends that whether to enforce the penalty against an employer's officers for failing to secure the payment of benefits pursuant to Section 725.495(a) is left to the discretion of the Director. The Director also contends that officers of an employer cannot be considered when naming and/or determining the properly designated responsible operator in a claim, inasmuch as the Director contends that officers do not meet the definition of an "operator" pursuant to 20 C.F.R. §725.491. Thus, when the most recent employer for more than one year of a claimant is not capable of assuming liability for failing to secure payment of benefits, the Director contends that it is within the Director's discretion to: 1) enforce the penalty against the employer's officers pursuant to Section 725.495; 2) identify and designate the next most recent employer for more than one year of a claimant as the properly designated responsible operator; or 3) pay claimant's benefits out of the Trust Fund.
Section 725.492 establishes certain criteria an employer must meet in order to be considered a responsible operator. See 20 C.F.R. §725.492. If the employer does not meet that criteria, then the responsible operator shall be considered the next employer with whom the claimant had the latest periods of employment of not less than one year pursuant to 20 C.F.R. §725.493(a)(4), see Massey, supra; Eastern Associated Coal Corp. V. Director, OWCP, 791 F.2d 1129 (4th Cir. 1986); see also Cole v. East Kentucky Collieries, 20 BLR 1-50 (1996). As the Director contends, Section 725.495, "Penalty for Failure to Insure, "...
To continue reading
Request your trial