Dobrzynski v. Valley Camp Coal Co.
| Decision Date | 29 July 2011 |
| Docket Number | BRB 10-0429 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | SHIRLEY DOBRZYNSKI o/b/o of EDWARD E. DOBRZYNSKI Claimant-Respondent v. VALLEY CAMP COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits on Modification of Alice M. Craft, Administrative Law Judge, United States Department of Labor.
Thomas E. Johnson (Johnson, Jones, Snelling, Gilbert & Davis) Chicago, Illinois, for claimant.
William S. Mattingly (Jackson Kelly PLLC), Morgantown, West Virginia, for employer.
Jonathan Rolfe (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, SMITH, and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits on Modification [1](2008-BLA-21) of Administrative Law Judge Alice M. Craft, with respect to a duplicate claim filed on November 2, 2000, pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006) amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) () (the Act). [2] The administrative law judge initially determined that claimant's request for modification was proper and would render justice under the Act. The administrative law judge also found that, based on the newly submitted evidence, claimant established the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4) and, therefore, a material change in conditions at 20 C.F.R. §§725.309(d) (2000), [3]725.310. On the merits, the administrative law judge noted that employer previously conceded that the miner was totally disabled pursuant to 20 C.F.R. §718.204(b)(2), but has not further contested this issue. The administrative law judge also determined that claimant established the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4), and total disability due to pneumoconiosis at 20 C.F.R. §718.204(c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer argues that claimant's request for modification should be barred because claimant's motive, and the timing of the request, are suspect. Employer also asserts that the administrative law judge did not properly weigh the medical opinion evidence at 20 C.F.R. §§718.202(a)(4), 718.204(c). Claimant responds, urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited brief in this appeal, arguing that the administrative law judge acted properly in granting claimant's modification request. [4]
The Board's scope of review is defined by statute. The administrative law judge's findings must be affirmed if they are 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).
In order to establish entitlement to benefits in a miner's claim filed pursuant to 20 C.F.R. Part 718, claimant must establish that the miner had pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis was totally disabling. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204; Gee v. W.G. Moore & Sons, 9 BLR 1-4 (1986)(en banc). Failure to establish any one of these elements precludes entitlement. See Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en banc).
In a brief on remand, employer argued that claimant's request for modification should be barred, as the motive and timing of the request were suspect, based on the decision of the United States Court of Appeals for the Fourth Circuit in Sharpe v. Director, OWCP, 495 F.3d 125, 24 BLR 2-56 (4th Cir. 2007). [6] Decision and Order at 4. The administrative law judge determined that claimant's request was timely filed and any allegations concerning motive were “mere supposition.” Id. at 4-5. The administrative law judge also rejected employer's argument that it is not permissible to readjudicate legal findings made in a prior claim when an appellate body has already affirmed a prior administrative law judge's findings of fact and legal determinations. Id. at 5. The administrative law judge determined that, because 20 C.F.R. §725.310 “allows reconsideration of a denied claim without any limitation respecting the level of appeal at which the claim was denied, ” she had the authority to consider claimant's modification request. Id. The administrative law judge also noted that the de novo standard of review for modification requests differs from the substantial evidence standard used by the Board when reviewing a decision on appeal. Id. Finding that the other cases cited by employer were either distinguishable or not relevant, the administrative law judge concluded that claimant's request for modification was proper under the Act and the regulations. Id.
Employer asserts that the administrative law judge's findings on the issue of modification are unexplained and unfounded. Employer alleges that, contrary to the administrative law judge's determination, the motive and timing of the modification request are suspect because it was made one day before the one-year time limit set forth in 20 C.F.R. §725.310 expired. Employer also reiterates the argument it made before the administrative law judge that, because claimant did not offer any new medical evidence in light of the miner's death, claimant was improperly seeking to readjudicate findings made in the prior claim that an appellate body has affirmed. Employer further maintains that claimant is attempting “to correct tactical errors made in the litigation of the initial decision, ” which is not a proper basis for modification. Employer's Brief at 17.
Regarding modification, the Director responds and argues that the administrative law judge did not abuse her discretion by granting claimant's modification request. The Director states that employer's argument, that the timing and motive of the request are suspect, lacks merit because the request was timely filed and employer did not identify any unlawful motive. The Director distinguishes the current case from the Fourth Circuit's decision in Sharpe by noting that, in that case, the administrative law judge granted employer's modification request as a matter of right and the request was made seven years after the Board affirmed the award, rather than within one year of the final approval of the claim. The Director also urges the Board to reject employer's contention, that a party cannot seek to alter an appellate decision via modification, as “nothing in 33 U.S.C. §922 or 20 C.F.R. §725.310 prohibits modification by an [administrative law judge] after a Board or court decision” and the case law cited by employer does not support its argument. Director's Brief at 4. Further, the Director indicates that “the notion that finality concerns prevent the submission of evidence available prior to an earlier denial of a claim under the Act . . . is simply wrong.” Id. at 4-5, citing Sharpe, 495 F.3d at 133, n.15, 24 BLR at 2-69, n.15; Old Ben Coal Co. v. Director, OWCP [Hilliard], 292 F.3d 533, 546, 22 BLR 2-429, 2-452 (7th Cir. 2002). Claimant responds, concurring with the Director's argument in its entirety and asserting that the modification request was proper.
We review the administrative law judge's rulings on procedural matters for abuse of discretion. See Dempsey v. Sewell Coal Co., 23 BLR 1-47 (2004)(en banc). Upon consideration of the administrative law judge's findings and the arguments on appeal, we affirm the administrative law judge's determination that claimant's modification request was not barred. The plain language of 20 C.F.R. §725.310 indicates that a party may seek modification “at any time before one year from the date of the last payment of benefits” or “at any time before one year after the denial of a claim.” 20 C.F.R. §725.310. Therefore, the administrative law judge correctly determined that claimant's modification request was not time-barred, despite the fact that claimant submitted it on the last possible day, as the petition for modification was filed within the one-year limit set forth in 20 C.F.R. §725.310. In addition, the administrative law judge acted within her discretion in finding that employer's mere assertion, that the filing of the request for modification one day before the expiration of the time limit was suspect, was insufficient to establish that claimant had an improper motive. See Dempsey, 23 BLR at 1-60.
The administrative law judge also rationally determined that the Fourth Circuit's decision in Sharpe does not mandate a finding that claimant's request for modification would not render justice under the Act. In Sharpe, the Fourth Circuit emphasized that “modification of a black lung award or denial does not automatically flow from a mistake in an earlier determination of fact” and that “the requesting party's motive may be an appropriate consideration in adjudicating a modification request.” Sharpe, 495 F.3d at 132-133, 24 BLR at 2-61-62. With respect to the latter principle, the court quoted with approval the statement of the United States Court of Appeals for the Seventh Circuit in Hilliard, that “if the party's purpose in filing a modification [req...
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