Cutright v. South Union Coal Co., BRB 13-0394 BLA

• Decision Date: 31 January 2014
• Docket Number: BRB 13-0394 BLA
• Court: Court of Appeals of Black Lung Complaints
• Parties: DOROTHY E. CUTRIGHT Widow of GERALD L. CUTRIGHT Claimant-Respondent v. SOUTH UNION COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

DOROTHY E. CUTRIGHT Widow of GERALD L. CUTRIGHT Claimant-Respondent v. SOUTH UNION COAL COMPANY Employer-Petitioner

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

BRB No. 13-0394 BLA

Court of Appeals of Black Lung

January 31, 2014

UNPUBLISHED OPINION

Appeal of the Decision and Order Awarding Benefits of Richard A Morgan, Administrative Law Judge, United States Department of Labor.

Ashley M. Harman (Jackson Kelly PLLC), Morgantown, West Virginia 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: DOLDER, Chief Administrative Appeals Judge, McGRANERY, and BOGGS, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM.

Employer appeals the Decision and Order Awarding Benefits (2013-BLA-5238) of Administrative Law Judge Richard A. Morgan, rendered on a subsequent survivor's claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act).

Claimant ^[1]filed her initial claim for survivor's benefits on November 25, 2005. Director's Exhibit 3. The district director denied benefits on August 2, 2006, finding that the evidence did not establish that the miner's death was due to pneumoconiosis or that claimant was dependent on the miner at the time of his death. ^[2] Id. Claimant did not pursue the claim further.

Claimant filed this subsequent claim on August 3, 2012. Director's Exhibit 5. The administrative law judge found claimant to be automatically entitled to receive benefits under amended Section 932(l) of the Act, 30 U.S.C. §932(l), ^[3]and awarded survivor's benefits commencing as of October 2006, the month after the month in which the denial of claimant's initial survivor's claim became final. Decision and Order at 6, n.7.

On appeal, employer argues that the denial of claimant's initial claim for survivor's benefits is res judicata, and precludes an award of survivor's benefits in this subsequent claim. ^[4] Claimant has not filed a response brief. The Director, Office of Workers' Compensation Programs, urges affirmance of the award of benefits.

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. ^[5] 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).

Relying on the arguments raised before the United States Court of Appeals for the Fourth Circuit by the employer in Union Carbide Corp. v. Richards, 721 F.3d 307 (4th Cir. 2013), employer argues that the recent amendments to the Act do not void the res judicata effect of the denial of benefits in claimant's prior survivor's claim. Employer's Brief at 5. The Fourth Circuit rejected those arguments in Richards, holding that the amendments to the Act created a new cause of action, and that res judicata therefore does not bar an award of benefits pursuant to Section 932(l) in subsequent survivor's claims. Richards, 721 F.3d at 313-17. We reject employer's arguments for the reasons set forth by the Fourth Circuit in Richards.

Because claimant filed her subsequent survivor's claim after January 1, 2005, her claim was pending after March 23, 2010, and the miner was receiving benefits under a final award at the time of his death, we affirm the administrative law judge's determination that claimant is entitled to receive survivor's benefits pursuant to amended Section 932(l) of the Act.

Benefits awarded under amended Section 932(l) are payable in a subsequent survivor's claim from the month after the month in which the denial of the prior claim became final. See Richards, 721 F.3d at 317 n.5. The district director denied claimant's initial claim on August 2, 2006, and the district director's decision became final thirty days thereafter, on September 1, 2006. 20 C.F.R. §725.419(d). Therefore, the administrative law judge properly ordered that benefits in this claim are payable as of October 2006.

Accordingly, the administrative law judge's Decision and Order Awarding Benefits is affirmed.

SO ORDERED.

NANCY S. DOLDER, Chief, Administrative Appeals Judge, REGINA C. McGRANERY, Administrative Appeals Judge, JUDITH S. BOGGS, Administrative Appeals Judge.

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Notes:

^[1]Claimant is the widow of the miner, who died on October 20, 2005. Director's Exhibit 9. At the time of his death, the miner was receiving federal black lung benefits pursuant to a final award on his lifetime claim. Director's Exhibit 1.

^[2]In summarizing the district director's finding that claimant did not establish her dependency on the miner, the administrative law judge noted that an evidence summary attached to the district director's decision stated that claimant met the relationship and dependency requirements of an eligible...