Collins v. Director, Office of Workers Compensation Programs

• Decision Date: 10 July 1986
• Docket Number: No. 85-2347,85-2347
• Parties: James F. COLLINS, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, United States Department of Labor, and the Benefits Review Board, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 368

795 F.2d 368

James F. COLLINS, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, United

States Department of Labor, and the Benefits

Review Board, Respondents.

No. 85-2347.

United States Court of Appeals, Fourth Circuit.

Argued May 7, 1986.

Decided July 10, 1986.

H. John Taylor, for petitioner.

Michael J. Denney, U.S. Dept. of Labor (George R. Salem, Deputy Solicitor, Donald S. Shire, Associate Solicitor, J. Michael O'Neill, Counsel for Appellate Litigation, Thomas L. Holzman, Asst. Counsel for Appellate Litigation, Washington, D.C., on brief), for respondents.

Before WIDENER, HALL and CHAPMAN, Circuit Judges.

K.K. HALL, Circuit Judge:

James F. Collins ("claimant") petitions for review of a decision of the Benefits Review Board, affirming certain determinations made by an Administrative Law Judge ("ALJ"). The ALJ's decision was made following a hearing on Collins' application for disability benefits pursuant to the Black Lung Benefits Act (the "Act"), 30 U.S.C. 901 et seq. Both the ALJ and the Benefits Review Board concluded that Collins was not entitled to benefits because he could not establish either through direct evidence or through regulatory presumptions that his disabling pneumoconiosis arose out of coal mining employment. We affirm.

I.

Collins applied for federal black lung benefits on April 1, 1974. The Department of Labor administratively denied the claim and Collins requested that his claim be forwarded to the Office of Administrative Law Judges for a formal hearing. Prior to his hearing on July 21, 1982, Collins, who had been represented by an attorney from the Legal Aid Society of Charleston, West Virginia, obtained private counsel.

At the hearing before the ALJ, counsel for the Director, Office of Workers' Compensation Programs conceded that Collins had established through x-ray evidence that he was suffering from pneumoconiosis. The only issue presented was whether claimant could establish that his impairment arose out of coal mine employment. In an effort to meet that burden, Collins sought to show that he had been engaged in coal mining employment for more than ten years and was therefore entitled to invoke the interim presumption contained in 20 C.F.R. Sec. 727.203(a). ¹

Through his personal testimony, his social security earnings record and the affidavits of former co-workers, Collins sought to establish coal mine related employment lasting over ten years. He testified that he was born in 1918 and that he began working with his father in an underground coal mine owned by the Rollyson Coal Company when he was fourteen or fifteen. He further stated that in 1934 at the age of sixteen he began working for a trucking contractor hauling slate away from a tipple owned by the Dixieport Coal Company of Campbell's Creek, West Virginia. Collins was apparently employed in that position until he entered military service in 1942. ²

Following his discharge from the Army in 1945, Collins had a checkered work history involving a variety of employment in both Georgia and West Virginia. He asserted before the ALJ that he was employed as an underground coal miner at various mines near Hugheston, West Virginia, between 1947 and 1950. His social security records, however, show other employment during that same period. Although some of Collins' post-war employment was clearly coal mine related, a substantial part of his working experience was either in road construction or fell within categories not readily discernible from the available evidence.

In an opinion issued on February 2, 1983, the ALJ held that Collins had demonstrated no more than three years, at most, of coal mine employment and was not, therefore, entitled to the invocation of the interim presumption. The ALJ then analyzed the claim for benefits under 20 C.F.R. Sec. 410 and concluded that Collins had not established that his pneumoconiosis arose out of coal mine employment. Accordingly, the ALJ denied the claim for benefits.

Following issuance of this decision and order, Collins obtained new counsel, who also represents him in this appeal, and filed a motion for reconsideration with the ALJ. In his motion, claimant alleged that his former counsel had failed to call two witnesses who would have confirmed certain coal mine employment. On June 29, 1983, the ALJ denied the motion for reconsideration.

Collins thereafter filed a timely notice of appeal with the Benefits Review Board. While the appeal was pending, he also filed a motion for modification with the ALJ. The motion for modification was denied as being without merit on May 15, 1984.

In the ultimate appeal to the Board, Collins alleged that his prior counsel's lack of effective preparation had denied him a full and fair hearing. He also contended that the ALJ had erred in finding his motion for modification to be without merit. On November 12, 1985, the Board issued a decision and order affirming the denial of benefits. The Board held that a review of the hearing record did "not reveal inadequate representation per se." The Board further held that Collins had not alleged any change of condition or mistake of fact in his motion for modification and that the ALJ's denial of that motion was proper.

This appeal followed.

II.

On appeal, Collins raises the same two contentions previously rejected by the Benefits Review Board. Specifically, he argues that the inadequate performance of his counsel deprived him of the right "to participate fully" in his hearing as required by 20 C.F.R. Sec. 725.452(b). He also contends that in denying his motion for modification, the ALJ failed to address proffered evidence that was sufficient to make a prima facie showing of more than ten years of coal mine employment. We see no merit in either contention.

The right of a party seeking benefits under the Black Lung Benefits Act to a hearing on his claim is unquestioned. See 20 C.F.R. Sec. 725.452. Section 556 of the Administrative Procedures Act, 5 U.S.C. Sec. 554 et seq., which is incorporated in the Black Lung Benefits Act, provides that at such a hearing "[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts."

In its simplest formulation, the right to a hearing is a right to a fair opportunity by a claimant to present his case to an impartial judge. When a claimant appears with freely chosen counsel of his own selection and participates in a hearing in which the ALJ properly discharges his duty of impartiality, it is difficult to see how there could be a denial of that right. In any event, we agree with the Benefits Review Board that on the available record there is no indication that the performance of Collins' counsel at the ALJ hearing was inadequate. ³

III.

We also agree with the Benefits Review Board's conclusion that Collins' motion for modification "failed to allege any change of condition or mistake of fact that would require...