Director, Office of Workers' Compensation Programs v. Oglebay Norton Co.

• Decision Date: 08 August 1989
• Docket Number: No. 88-3512,88-3512
• Citation: 877 F.2d 1300
• Parties: DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Petitioner, v. OGLEBAY NORTON CO., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1300

877 F.2d 1300

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Petitioner, v. OGLEBAY NORTON CO., Respondent.

No. 88-3512.

United States Court of Appeals Sixth Circuit.

Argued April 21, 1989.

Decided June 23, 1989.

Rehearing and Rehearing En Banc Denied Aug. 8, 1989.

Rae Ellen, Frank James, Anne P. Fugett (argued), U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.

John G. Paleudis (argued), Hanlon, Duff & Paleudis, St. Clairsville, Ohio, for Oglebay Norton Co.

Clifford M. Farrell, Virginia K. Mayle, Barkan & Neff, Columbus, Ohio, for Enid Goddard, Widow of Carl Goddard.

Before WELLFORD and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

The Director appeals the dismissal by the Administrative Law Judge (ALJ) and the subsequent affirmance of this dismissal by the Benefits Review Board of Oglebay Norton Co. (Oglebay) as the responsible operator in this black lung widows' benefits case. We believe that the ALJ improperly concluded (1) that Oglebay should be dismissed as the responsible operator and (2) that liability should be transferred to the Black Lung Disability Trust Fund. Accordingly, we reverse the ALJ's finding.

FACTS

Carl Goddard filed an application for black lung disability benefits on July 20, 1973. Along with his application, Goddard filed a history of coal mine employment in which he stated that the most recent coal company he had worked for was the Youghiogheny and Ohio Coal Company (Y & O), from October 18, 1972 to July 31, 1973. Goddard also stated that he had been employed by Oglebay from February 21, 1955 to August 23, 1972.

After initial denials on September 12, 1973, June 3, 1974, February 24, 1976, and August 17, 1977, the Office of Workers' Compensation Programs (OWCP) issued a finding of eligibility on July 20, 1979 naming Y & O as the responsible operator and ordered benefits payable from January 1, 1974. On August 9, 1979, Y & O contested this finding of entitlement and disputed its identification as the responsible operator. 20 C.F.R. Sec. 725.493(a)(1) defines a responsible operator as "the operator or other employer with which the miner had the most recent periods of cumulative employment of not less than 1 year...." (emphasis added). Goddard had been employed by Y & O for only ten months and the parties stipulated to this fact at an informal conference on March 27, 1980. Nevertheless, the OWCP forwarded Goddard's claim to the Office of Administrative Law Judges on July 8, 1980 with Y & O named as the responsible operator.

On April 30, 1981, Carl Goddard died and on May 30, 1981, his widow, Enid, filed a separate claim for benefits as a surviving spouse.

A hearing on the claim was scheduled for October 5, 1981. On September 12, 1981, Y & O filed a motion for summary judgment on the ground that by law it could not be the responsible operator since it had employed Goddard for less than one year. The Director also moved to remand the claim to the OWCP to identify the proper responsible operator. On September 25, 1981, the ALJ ordered remand of the claim to the deputy commissioner to identify the responsible operator.

On May 17, 1983, Oglebay was informed that it had been identified as the responsible operator. Oglebay was also informed of Y & O's prior involvement in the claim. Oglebay contested liability and moved that it be dismissed as the responsible operator and that liability be transferred to the Black Lung Disability Trust Fund. Oglebay also produced the evidence it had developed in defense of Goddard's claim. On March 23, 1983, the OWCP denied Oglebay's motion to transfer liability to the Trust Fund and ruled that the additional evidence produced by Oglebay did not alter the initial finding of disability.

The OWCP transferred the claim to the Office of Administrative Law Judges on July 26, 1983. Oglebay again filed a motion to be dismissed as the responsible operator and to transfer liability to the Trust Fund, citing Crabtree v. Bethlehem Steel Corp., 7 BLR 1-354 (1984), as authority. Enid Goddard joined in this motion. On December 26, 1985, the ALJ dismissed Oglebay as the responsible operator pursuant to Crabtree. Noting the inefficiency of the OWCP in processing Goddard's claim, the ALJ transferred liability for Goddard's disability payments to the Black Lung Disability Trust Fund. This decision was affirmed by the Benefits Review Board on March 19, 1988, on the authority of its Crabtree decision. The Director now appeals to this court.

ANALYSIS

The Director contends that the deputy commissioner's identification of Oglebay as the responsible operator was proper under 20 C.F.R. Sec. 725.412(a). Additionally, the Director argues that the ALJ improperly transferred liability to the Black Lung Disability Trust Fund.

Applicability of 20 C.F.R. Sec. 725.412(a) ¹

The regulations contained at 20 C.F.R. Sec. 725.412 govern the identification of a responsible operator by the deputy commissioner. 20 C.F.R. Sec. 725.412(a) provides, in part:

At any time during the processing of a claim under this part, after sufficient evidence has been made available to the deputy commissioner, the deputy commissioner may identify a coal miner operator ... which may be liable for the payment of the claim in accordance with the criteria contained in Subpart F of this part. ² Such identification shall be made as soon after the filing of the claim as the evidence obtained permits....

In support of the decisions below, Oglebay suggests a narrow construction of Sec. 725.412(a), stressing the language that "identification shall be made as soon after the filing of the claim as the evidence obtained permits." This language, Oglebay asserts, mandates identification of a responsible operator within a reasonable time after the information necessary to make an identification becomes available to the deputy commissioner. Since identification was not made a reasonable time after such information was made available in this case, Oglebay contends that the deputy commissioner's identification of Oglebay as the responsible operator was invalid.

We decline to follow Oglebay's construction of Sec. 725.412(a) for two reasons. First, Oglebay's emphasis on the second sentence of subsection (a) appears to be at odds with the language of the first sentence which permits identification of a responsible operator "[a]t any time during the processing of a claim under this part." ³ See American Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 1538, 71 L.Ed.2d 748 (1982) ("Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible."); Payne v. Panama Canal Co., 607 F.2d 155, 164 (5th Cir.1979) ("Every statute must be viewed in its entirety so that each part has a sensible and intelligent effect harmonious with the whole."). We believe that a harmonious construction of 20 C.F.R. Sec. 725.412(a) allows the identification of Oglebay as the responsible operator. Although this identification was made nearly ten years after Goddard's claim was filed, the claim had not, at that time, been finally adjudicated. Therefore, it was still being processed when the identification of Oglebay was made and Sec. 725.412(a) was not violated.

Additionally, we believe it is inappropriate for this court to read a time limitation into 20 C.F.R. Sec. 725.412(a), as Oglebay suggests. Such a reading would inject a degree of uncertainty into future responsible operator identifications, requiring the ALJ to determine whether identification in each case was made within a reasonable time of filing and "to deal with each [identification] on an ad hoc basis in which multifarious, indeed unlimited, factors would need to be considered and weighed." Conn v. United States, 867 F.2d 916, 921 (6th Cir.1989). If the need for a time limitation becomes great, it is properly within the authority of the Department of Labor to amend the regulation to remedy such a deficiency. 30 U.S.C. Sec. 932(a).

Validity of Crabtree v. Bethlehem Steel Corp.

Both the ALJ and the Board in this case rested their decisions ordering the dismissal of Oglebay as the responsible operator on the Board's prior decision in Crabtree v. Bethlehem Steel Corp., 7 BLR 1-354 (1984). The Board in Crabtree dismissed Bethlehem as the responsible operator, finding that Crabtree had been an independent contractor. The Board then determined that a further remand to determine a responsible operator was not warranted.

The Department of Labor is not entitled to a second opportunity to identify another putative responsible operator.

... The regulations contain no express provision requiring the Department to identify all putative responsible operators, and resolve any dispute as to which one is properly responsible for benefits, in one proceeding. We hold, however, that due process, as well as the efficient administration of the Act, compels this result.

Remand for reconsideration of the operator issue would be tantamount to relitigating the claim.... [Such p]iecemeal litigation obviously is not compatible with the efficient administration of the Act and expeditious processing of claims.

Id. at 1-356 to 1-357 (footnotes omitted). The Crabtree Board then held that, "in the absence of any other potentially liable operator", the Black Lung Disability Trust Fund ⁴ must assume liability for the payment of benefits to the claimant. Id.

In this case, the ALJ, applying Crabtree, dismissed Oglebay as the responsible operator and transferred liability to the Trust Fund. "The error which set in motion the fragmentation and intolerable delay of this litigation was so patent and so unnecessary that it is only just that the Department of Labor [i.e., the Trust Fund] bear responsibility for it." Joint Appendix at A-19.

We are not obligated to follow the Benefits Review Board's decision in Crabtree. The...