Dominion Coal Corp. v. Honaker

• Decision Date: 31 August 1994
• Docket Number: No. 93-1585,93-1585
• Citation: 33 F.3d 401
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: DOMINION COAL CORPORATION, Petitioner, v. Tommy HONAKER; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

Page 401

33 F.3d 401

DOMINION COAL CORPORATION, Petitioner, v. Tommy HONAKER; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 93-1585.

United States Court of Appeals Fourth Circuit.

Argued Feb. 8, 1994.

Decided Aug. 31, 1994.

ARGUED: Ronald Eugene Gilbertson, Kilcullen, Wilson & Kilcullen, Washington, DC, for petitioner. C. William Mangum, U.S. Dept. of Labor, Washington, DC, for respondent Director; Bobby Steve Belcher, Jr., Wolfe & Farmer, Norton, VA, for respondent Honaker. ON BRIEF: Thomas S. Williamson, Jr., Sol. of Labor, Donald S. Shire, Associate Sol., Marta Kusic, Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, DC, for respondent Director; Vernon M. Williams, Wolfe & Farmer, Norton, VA, for respondent Honaker.

Before NIEMEYER, Circuit Judge, and PHILLIPS, Senior Circuit Judge and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge PHILLIPS and District Judge ELLIS joined.

OPINION

NIEMEYER, Circuit Judge:

When Tommy Honaker, a former coal miner, was denied black lung benefits under the Black Lung Benefits Act by a decision of the Administrative Law Judge ("ALJ"), he appealed that decision to the Benefits Review Board, but only after the applicable statute's 30-day period for appealing had run. Ruling that the appeal was not untimely and that the Board had jurisdiction to hear the case, the Board addressed the merits of Honaker's appeal, reversed the ALJ's decision, and awarded benefits. Because the Board lacked jurisdiction to consider the claim, however, we reverse and remand with instructions to the Board to dismiss Honaker's appeal and reinstate the ALJ's original order.

I

On December 30, 1976, Tommy Honaker, who had been employed by the Dominion Coal Corporation to work in its coal mines, filed a claim for benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972 and the Black Lung Benefits Reform Act of 1977 (collectively, "the Act"), 30 U.S.C. Sec. 901 et seq. (providing benefits to persons totally disabled due to pneumoconiosis, commonly known as "black lung," arising from coal mine employment).

Following a hearing before the ALJ on October 5, 1987, the ALJ found that Honaker established eighteen years of coal mine employment and the existence of pneumoconiosis through x-ray evidence and arterial blood gas studies, and that Honaker was entitled to a statutory rebuttable interim presumption of total disability due to pneumoconiosis arising from his coal mine employment under 20 C.F.R. Secs. 727.203(a)(1), (a)(3). The ALJ also found, after balancing medical opinions, that the employer had rebutted the presumption under 20 C.F.R. Sec. 727.203(b)(2), by demonstrating that although Honaker had some respiratory or pulmonary impairment, that impairment did not prevent him from performing his usual coal mine work or other comparable gainful work. The ALJ issued an opinion and order on January 15, 1988, denying Honaker benefits under the Act.

The ALJ's decision was sent by regular mail both to Honaker's counsel, Gerald Sharp, Esq., and the employer's counsel. A copy was also sent by regular mail to Honaker at Box 403 Main Street, Honaker, Virginia, the address listed on the service sheet. Prior to the decision, however, Honaker had changed residences and had provided the ALJ with his new address, at Box 90, Rosedale, Virginia. After the decision was mailed, it was also filed in the office of the Deputy Commissioner on February 2, 1988.

Honaker's counsel, Sharp, received his copy of the decision on January 20, 1988. On the same date, Sharp wrote to Honaker, informing him of the adverse decision and of Sharp's withdrawal as counsel. The letter, which was also mailed to Honaker's old address, stated:

As I am sure you are aware we have received a decision and order denying your claim for Federal Black Lung benefits issued by Judge John J. Forbes, Jr. on January 15, 1988. I am sorry we will not be able to be any further assistance to you in regard to the above and if you would like to go ahead and pick up your file you may do so by dropping by the office at your convenience.

While Honaker claims he did not receive a copy of the ALJ's decision in the mail, he apparently did receive his lawyer's letter because in early February Honaker picked up a copy of his file from Sharp's office. Honaker claims, however, that the file he picked up did not contain a copy of the ALJ's decision. About a month later, on March 4, 1988, Honaker picked up a copy of the ALJ's decision from Sharp. On the same day, Honaker contacted a new law firm to represent him on his appeal, and his new counsel filed a notice of appeal with the Benefits Review Board on March 8, 1988, 48 days after Honaker's counsel received the decision and 35 days after the decision was filed in the office of the Deputy Commissioner.

Dominion Coal filed a motion to dismiss the appeal as untimely, and the Benefits Review Board denied the motion, reasoning that the ALJ's decision had not been sent to the parties by registered or certified mail as required by 33 U.S.C. Sec. 919(e) and by 20 C.F.R. Secs. 725.478, 725.479, and 802.205.

On the merits, the Board affirmed the ALJ's findings with respect to the invocation of the interim presumption under 20 C.F.R. Secs. 727.203(a)(1), (a)(3), but reversed the ALJ's conclusion that evidence rebutted the presumption under 20 C.F.R. Sec. 727.203(b)(2), reasoning that the ALJ applied an incorrect legal standard on Sec. 203(b)(2). The Board found that under this Circuit's decision in Sykes v. Director, OWCP, 812 F.2d 890 (4th Cir.1987), rendered after the ALJ's order, rebuttal of the interim presumption could only be established by the employer's affirmative showing that the claimant is capable of performing his usual coal mine employment or comparable and gainful employment on the basis of the claimant's total physical condition, not relying solely upon the condition of the claimant's lungs.

This appeal followed.

II

Dominion Coal contends that Honaker's appeal to the Board was untimely, and that the Board had no jurisdiction to hear the appeal, because the appeal was filed more than 30 days after the ALJ filed his decision in the Deputy Commissioner's office and more than 30 days after it was received by Honaker's counsel. Honaker argues, to the contrary, that because the ALJ's decision was not served by registered or certified mail, as required by 33 U.S.C.Sec. 919(e), the time for appeal had not yet begun to run when he filed his appeal. The parties agree that if the appeal from the ALJ's decision was not filed within the time specified by statute and regulation, the Board would lack jurisdiction to hear the case and the ALJ's decision would become final. See 20 C.F.R. Sec. 802.205(c); Dawe v. Old Ben Coal Co., 754 F.2d 225, 227 (7th Cir.1985).

Reading applicable statutes and regulations together, a claimant denied black lung benefits must appeal the decision within 30 days after the decision (1) is filed in the office of the Deputy Commissioner in accordance with 33 U.S.C. Sec. 921(a) and (2) is served on the claimant in accordance with 33 U.S.C. Sec. 919(e). See Jewell Smokeless Coal Corp. v. Looney, 892 F.2d 366, 369 (4th Cir.1989). Section 21 of the Longshore and Harbor Workers' Compensation Act, which is incorporated into the Black Lung Benefits Act by 30 U.S.C. Sec. 932(a), states:

A compensation order shall become effective when filed in the office of the deputy commissioner as provided in section 19 [33 U.S.C.S. Sec. 919], and, unless proceedings for the suspension or setting aside of such order are instituted as provided in subdivision (b)of this section, shall become final at the expiration of the thirtieth day thereafter.

33 U.S.C. Sec. 921(a); see also 20 C.F.R. Sec. 725.479. The requirement for service of the ALJ's decision provides:

The order rejecting the claim or making the award (referred to in this Act as a compensation order) shall be filed in the office of the deputy commissioner, and a copy thereof shall be sent by registered mail or by certified mail to the claimant and to the employer at the last known address of each.

33 U.S.C. Sec. 919(e) (emphasis added); see also 20 C.F.R. Sec. 725.478. The requirement in Sec. 919(e) of serving the claimant can also be satisfied by serving the claimant's attorney:

A representative, appointed and qualified as provided in Secs. 725.362 and 725.363, may make or give on behalf of the party he or she represents, any request or notice relative to any proceeding...