Brock v. Great Western Resources, BRB 00-0547 BLA
| Decision Date | 08 February 2001 |
| Docket Number | BRB 00-0547 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BEULAH BROCK Widow of ORVILLE BROCK Claimant-Petitioner v. GREAT WESTERN RESOURCES Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order - Denial of Benefits of Robert L Hillyard, Administrative Law Judge, United States Department of Labor.
Mark L. Ford (Ford & Siemon), Harlan, Kentucky, for claimant.
Denise M. Davidson (Barret, Haynes, May, Carter & Roark, P.S.C.) Hazard, Kentucky, for employer.
Sarah M. Hurley (Judith E. Kramer, Acting Solicitor of Labor 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, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, McGRANERY, Administrative Appeals Judge, and NELSON, Administrative Appeals Judge.
DECISION and ORDER.
Claimant[1]appeals the Decision and Order - Denial of Benefits (99-BLA-0657) of Administrative Law Judge Robert L. Hillyard on a survivor's 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).[2] Initially, the administrative law judge credited the miner with thirty-six years and nine months of qualifying coal mine employment, and determined that claimant established the existence of pneumoconiosis arising out of coal mine employment, but failed to establish that the miner's death was due to pneumoconiosis. Accordingly, the administrative law judge denied benefits.
On appeal, claimant argues that the case should be held in abeyance for twelve years until the termination of claimant's receipt of the miner's state workers' compensation benefits. Additionally, claimant contends that the Director, Office of Worker's Compensation Programs (the Director), failed to assist claimant with the development of her survivor's claim. Employer responds urging affirmance of the denial of benefits. The Director has filed a response letter, disagreeing with claimant's contentions with respect to holding the case in abeyance and the inadequate assistance she received from the Director's office. Consequently, claimant has filed a reply brief, reiterating her arguments.[3]
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and conclusions of law are supported by substantial evidence, are rational, and are consistent with the applicable law, they are binding upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
To establish entitlement to benefits on a survivor's claim filed on or after January 1, 1982, a claimant must establish that the miner had pneumoconiosis, that the miner's pneumoconiosis arose out of coal mine employment, and that the miner's death was due to pneumoconiosis. 20 C.F.R. §§718.202(a), 718.203(a), 718.205(a). Death will be considered due to pneumoconiosis if the evidence establishes that the miner's death was due to pneumoconiosis or that pneumoconiosis was a substantially contributing cause or factor leading to the miner's death. 20 C.F.R. §718.205(c)(1), (2), (4). Pneumoconiosis is a substantially contributing cause of death if it actually hastens the miner's death. 20 C.F.R. §718.205(c)(5); see Brown v. Rock Creek Mining Co., Inc., 996 F.2d 812, 17 BLR 2-135 (6th Cir. 1993).
Claimant initially argues that this case should be held in abeyance, pending the completion of the payment of state workers' compensation benefits scheduled to expire in the year 2012. Director's Exhibit 25; [1999] Hearing Transcript at 10. Claimant avers that, notwithstanding a finding of entitlement on her survivor's claim, she is ineligible to receive any federal benefits for twelve years. Claimant's arguments are without merit. It is well established that in the Black Lung Benefits Act, Congress intended federal benefits to serve only as a supplement to inadequate state awards. Carbon Fuel Co. v. Director, OWCP [Kyle], 20 F.3d 120, 18 BLR 2-228 (4th Cir. 1994); see Director, OWCP v. Hamm, 113 F.3d 23, 21 BLR 2-131 (4th Cir. 1997). Section 422(g) of the Act, and its implementing regulation at 20 C.F.R. §725.101(a)(31), provides that Federal Black Lung Benefits shall be reduced by the amount of any compensation received under any federal or state workers' compensation law because of death or disability due to pneumoconiosis. 30 U.S.C. §932(g); see O'Brockta v. Eastern Associated Coal Co., 18 BLR 1-71, 1-78 (1994); Burnette v. Director, OWCP, 14 BLR 1-151 (1990). Therefore, contrary to claimant's contention, her continuing receipt of state workers' compensation benefits would not preclude a finding of entitlement in her survivor's claim or preclude her eligibility to receive federal benefits.
Furthermore, claimant's request to hold the case in abeyance is denied. In a case involving claimants who were required by Kentucky state law, as a condition for filing a state workers' compensation claim, to pursue federal Black Lung claims diligently and in good faith, the Board held that an administrative law judge cannot enter Orders of Dismissal, which could be set aside at some indefinite future time, if it is ever determined by the Kentucky Workers' Compensation Board that claimants did not diligently and in good faith pursue their federal Black Lung claims. Slone v. Wolfe Creek Coal Collieries, Inc., 10 BLR 1-66 (1987), appeal dismissed, sub nom. Canada Coal Co. v. Stiltner, 866 F.2d 153, 12 BLR 2-115 (6th Cir. 1989). Accordingly, judicial finality requires either that claimants continue to pursue their federal claims, or that the claims be unconditionally withdrawn[4]or dismissed. We, therefore, reject claimant's arguments. See Slone, 10 BLR at 1-70.
Claimant requests that the case be reversed because she received inadequate assistance from the Director in the pursuit of her claim. Specifically, claimant argues that because employer appealed the district director's finding that she was entitled to survivor's benefits, the Director was thereafter required by law to represent claimant's interests and defend her award of benefits before the administrative law judge. The Director responds that, contrary to claimant's argument, he has no statutory duty to advocate a claimant's position once a claim is referred to the Office of Adminstrative Law Judges or the Board in cases where the district director rendered a finding of entitlement and a responsible operator is liable for the award of benefits. We agree with the Director.
Section 725.405(c) provides, "In the case of a claim filed by or on behalf of a survivor of a miner, the district director shall obtain whatever medical evidence is necessary and available for the development and evaluation of the claim." 20 C.F.R. §725.405(c). Similarly, it is well established that the Act, regulations, and case precedent all provide that the claimant, not the Department of Labor (the Director), bears the burden of establishing initial entitlement. The Board has explained that White v. Director, OWCP, 6 BLR...
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