Dalton v. Frontier-Kemper Constructors, Inc., BRB 11-0852 BLA
| Decision Date | 07 December 2012 |
| Docket Number | BRB 11-0852 BLA,12-0168 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | MICHAEL DALTON, SANDI COLLINS, KATHY MOUDY, and JOYCE GILLIHAN o/b/o WILLIAM DALTON Claimants-Respondents v. FRONTIER-KEMPER CONSTRUCTORS, INCORPORATED Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeals of the Decision and Order and Attorney Fee Order of Alice M. Craft, Administrative Law Judge, United States Department of Labor.
Anne Megan Davis (Johnson, Jones, Snelling, Gilbert & Davis P.C.), Chicago, Illinois, for claimants.
Mary Lou Smith (Howe, Anderson & Steyer, P.C.), Washington D.C., for employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order (2009-BLA-5920) of Administrative Law Judge Alice M. Craft denying employer's request for modification of an award of benefits in a miner's claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (Supp. 2011) (the Act). [1] Employer also appeals the administrative law judge's subsequent Attorney Fee Order (2009-BLA-5920). [2]
The miner's claim, filed on June 1, 1999, has previously been before the Board. [3] In its most recent decision, pursuant to employer's appeal, the Board affirmed Administrative Law Judge Rudolf L. Jansen's findings that the miner established twenty-two years and three months of coal mine employment, [4]and that the x-ray evidence established the existence of clinical pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1). The Board vacated, however, Judge Jansen's finding as to the miner's smoking history as well as his finding that the medical opinion evidence established the existence of legal pneumoconiosis, [5]pursuant to 20 C.F.R. §718.202(a)(4), and instructed Judge Jansen to reconsider the miner's smoking history and its effect on the credibility of the relevant medical opinions. Finally, the Board vacated Judge Jansen's finding that the miner's total disability was due to pneumoconiosis, pursuant to 20 C.F.R. §718.204(c). Consequently, the Board remanded the case to Judge Jansen for further consideration of these issues. Dalton v. Frontier-Kemper Constructors, Inc., BRB No. 06-0596 BLA (Apr. 27, 2007)(unpub.).
On remand, three of the miner's four children moved to be substituted as parties in the miner's claim, on the ground that the miner died in March 2007. Due to Judge Jansen's unavailability, the case was reassigned, without objection, to Administrative Law Judge Joseph E. Kane. In a Decision and Order on Remand issued on August 29, 2008, Judge Kane initially denied the children's Motion to be substituted as parties. Because all benefits to which the miner was entitled had been paid by the Black Lung Disability Trust Fund (the Trust Fund), Judge Kane found that the miner's children had no rights with respect to benefits that might be prejudiced by adjudication of the claim, pursuant to 20 C.F.R. §725.360. Director's Exhibit 82. Considering the merits of entitlement, Judge Kane found that the evidence established that the miner smoked approximately three-quarters of a pack of cigarettes per day, for approximately twenty years, or a total of fifteen pack-years. Judge Kane further found that the medical opinion evidence established the existence of legal pneumoconiosis, pursuant to 20 C.F.R. §718.202(a)(4). Director's Exhibit 82. Finally, Judge Kane found that the medical opinion evidence established that the miner's total disability was due to legal pneumoconiosis, pursuant to 20 C.F.R. §718.204(c). Accordingly, Judge Kane awarded benefits, commencing as of June 1999, the month in which the miner filed his claim.
Employer appealed Judge Kane's decision, but later withdrew its appeal so that it could pursue a petition for modification, filed with the district director, alleging a mistake of fact in the award of benefits. Director's Exhibits 53, 55. By Order dated February 26, 2009, the Board granted employer's motion, dismissed employer's appeal, and remanded the case to the district director for modification proceedings. Director's Exhibit 56.
The case was eventually reassigned, without objection, to Judge Craft (the administrative law judge) for a decision on the record. On May 12, 2010, all four of the miner's children renewed their Motion to be substituted as parties to the miner's claim. By Order dated June 23, 2010, the administrative law judge granted the motion, over employer's objection. In a decision dated August 23, 2011, the administrative law judge considered both the original evidence and the new evidence submitted by the parties on modification, and found that employer failed to meet its burden to establish a mistake in a determination of fact regarding the award of benefits. Accordingly, the administrative law judge denied employer's request for modification, pursuant to 20 C.F.R. §725.310 (2000). [6] The administrative law judge further found, however, a mistake in Judge Kane's determination of the date for the commencement of benefits, and modified the award to reflect benefits commencing as of August 1991, rather than June 1999.
On appeal, employer contends that the administrative law judge erred in substituting the claimants as parties to this claim. Employer also contends that claimants' counsel engaged in ex parte communications with the administrative law judge's office. Regarding the merits of entitlement, employer asserts that the administrative law judge erred in her evaluation of the miner's coal mine employment and smoking histories. Employer also asserts that the administrative law judge erred in weighing the medical opinion evidence relevant to the existence of legal pneumoconiosis, pursuant to 20 C.F.R. §718.202(a)(4), and relevant to whether the miner's disability was due to legal pneumoconiosis, pursuant to 20 C.F.R. §718.204(c). [7] Employer also asserts that the administrative law judge erred in modifying the date from which benefits commence. In a separate appeal, employer contests the administrative law judge's award of an attorney's fee to claimants' counsel. The claimants respond, urging affirmance of the denial of employer's request for modification, and the fee award. The Director, Office of Workers' Compensation Programs, has declined to participate in these appeals. In a combined reply brief, employer reiterates its previous contentions.
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 & Grylls Associates, Inc., 380 U.S. 359 (1965). The Board reviews the administrative law judge's procedural rulings for abuse of discretion. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-153 (1989)(en banc).
We first address employer's contention that the administrative law judge erred in finding that the miner's adult children are proper parties to this claim. The applicable regulation provides that a widow, child, parent, brother or sister of a claimant, or the representative of the decedent's estate, who makes a showing that his or her “rights with respect to benefits may be prejudiced by a decision of an adjudication officer, may be made a party.” 20 C.F.R. §725.360(b). Employer does not contest the claimants' status as the miner's children. Rather, employer asserts that, because all benefits to which the miner was entitled had been paid by the Trust Fund at the time the claimants sought to become parties, the claimants failed to show that their “rights with respect to benefits may be prejudiced by a decision.” Employer's Brief at 7. Thus, employer asserts that the administrative law judge erred in allowing the claimants to be parties to this claim. Employer's Brief at 7. Employer's contention lacks merit.
The administrative law judge properly found that the claimants have a monetary interest in this claim, as they may be entitled to collect from employer an additional twenty percent of the benefits paid, as a penalty for its failure to pay benefits within ten days after they became due. [8] 20 C.F.R. §725.607; see Crowe v. Zeigler Coal Co., 646 F.3d 435, 445, 24 BLR 2-403, 2-420 (7th Cir. 2011); Order Granting Renewed Motion for Substitution at 4-5. We, therefore, reject employer's allegation of error, and affirm the administrative law judge's determination to substitute the miner's children as parties to this claim. [9]
We next address employer's assertion that claimants' counsel engaged in improper ex parte communications with the administrative law judge's staff. Employer's Brief at 5-9. Specifically, employer asserts that counsel placed four telephone calls to the administrative law judge's office between February and May of 2011, without notifying employer, [10]in violation of 29 C.F.R. §18.38(a). Id. Employer contends that the fact that the administrative law judge's office entertained counsel's telephone calls evinces that the administrative law judge was disposed to decide this case in claimants' favor. Employer's Brief at 6. Employer's argument lacks merit.
The record reflects that, in response to employer's objection to the alleged improper communication with the administrative law judge, the claimants' counsel explained that she had no contact with the administrative law judge, but telephoned the administrative law judge's office only to inquire about the status of...
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