Evans v. Dixie Pine Coal Co.
| Decision Date | 25 February 2004 |
| Docket Number | BRB 03-0303 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | EARL EVANS Claimant-Petitioner v. DIXIE PINE COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Daniel F Solomon, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and W. Andrew Delph, Jr. (Wolfe Williams & Rutherford), Norton, Virginia, for claimant.
Tab R Turano and Laura Metcoff Klaus (Greenberg Traurig LLP) Washington, D.C., for employer.
BEFORE: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
Employer appeals the Decision and Order Awarding Benefits of Administrative Law Judge Daniel F. Solomon on a claim filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C §901 et seq. (the Act). [1] The administrative law judge credited claimant with nineteen years of coal mine employment and adjudicated this duplicate claim pursuant to the regulations contained in 20 C.F.R. Part 718. [2] The administrative law judge found the evidence sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). [3] On the merits, the administrative law judge found the evidence sufficient to establish the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a) and 718.203(b). The administrative law judge further found the evidence sufficient to establish total disability pursuant to 20 C.F.R. §718.204(b)(2)(ii). [4] In addition, the administrative law judge found the evidence sufficient to establish that claimant's total disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer contends that the administrative law judge's adjudication of claimant's duplicate claim violates the doctrine of res judicata. Employer also contends that claimant's duplicate claim was untimely filed. Further, employer contends that the administrative law judge erred in finding the evidence sufficient to establish a material change in conditions at 20 C.F.R. §725.309 (2000). In addition, employer challenges the administrative law judge's findings at 20 C.F.R. §§718.202(a), 718.204(b)(2)(ii), 718.204(b)(2) overall and 718.204(c). Lastly, employer challenges the administrative law judge's award of augmented benefits payable to claimant on behalf of his grandchild. Claimant responds, urging affirmance of the administrative law judge's award of benefits. The Director, Office of Workers' Compensation Programs (the Director), also responds, urging the Board to reject employer's contention that the administrative law judge's adjudication of claimant's duplicate claim violates the doctrine of res judicata. The Director further urges the Board to reject employer's contention that claimant's duplicate claim was untimely filed. The Director additionally urges the Board to reject employer's contention that claimant failed to prove that his pneumoconiosis is latent and progressive before the administrative law judge found that the newly submitted evidence established the existence of pneumoconiosis. [5]
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and conclusions of law are supported by substantial evidence, are rational, and are consistent with applicable law, they are binding upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Initially, employer contends that the administrative law judge's adjudication of claimant's duplicate claim violates the doctrine of res judicata. In Sharondale Corp. v. Ross, 42 F.3d 993, 997, 19 BLR 2-10, 2-18 (6th Cir. 1994), the United States Court of Appeals for the Sixth Circuit, within whose jurisdiction this case arises, held that an administrative law judge must consider all of the new evidence, favorable and unfavorable to claimant, and determine whether the miner has proven at least one of the elements of entitlement previously adjudicated against him to assess whether the evidence is sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309(d) (2000). The court also held that the doctrine of res judicata does not apply to the material change in conditions standard it adopted. Ross, 42 F.3d at 998, 19 BLR at 2-20. With regard to the material change in conditions standard in Ross, the court stated:
It affords a miner a second chance to show entitlement to benefits under the Act. The interpretation implicitly recognizes that the doctrine of res judicata is not implicated by the claimant's physical condition or extent of his disability at two different times.
Id. In view of the Sixth Circuit's holding in Ross that the doctrine of res judicata does not apply to a determination of whether a material change in conditions is established at 20 C.F.R. §725.309 (2000), we reject employer's contention that the administrative law judge's adjudication of claimant's duplicate claim violates the doctrine of res judicata. Id.; see also Sellards v. Director, OWCP, 17 BLR 1-77 (1993).
Next, citing Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602, 22 BRB 2-288 (6th Cir. 2001), employer contends that claimant's duplicate claim was untimely filed. Employer's contention is based on the premise that the instant claim is barred by 20 C.F.R. §725.308 because it was not filed within three years after the communication to claimant of a medical determination that he is totally disabled due to pneumoconiosis. The Director responds, contending that employer has waived its right to raise the issue of timeliness of the claim.
First, we will address the Director's contention that employer has waived its right to raise the issue of timeliness of the claim. Section 422(f) of the Act, 30 U.S.C. §932(f), as implemented by Section 725.308, requires that a claim be filed within three years of a medical determination of total disability due to pneumoconiosis that is communicated to the miner or claimant. The Board has held that this time limitation does not bar the filing of a duplicate claim, as Section 725.308 applies only to the filing of claimant's initial Part C claim and that the filing of any subsequent claims need not comply with the statute of limitations. Faulk v. Peabody Coal Co., 14 BLR 1-18 (1990); Andryka v. Rochester & Pittsburgh Coal Co., 14 BLR 1-34 (1990). In Kirk, however, the Sixth Circuit held:
The three-year limitations clock begins to tick the first time that a miner is told by a physician that he is totally disabled by pneumoconiosis. This clock is not stopped by the resolution of the miner's claim or claims, and, pursuant to [Ross], the clock may only be turned back if the miner returns to the mines after a denial of benefits. There is thus a distinction between premature claims that are unsupported by a medical determination...and those claims that come with or acquire such support. Medically supported claims, even if ultimately deemed "premature" because the weight of the evidence does not support the elements of the miner's claim, are effective to begin the statutory period. Three years after such a determination, a miner who has not subsequently worked in the mines will be unable to file any further claims against his employer, although, of course he may continue to pursue pending claims.
Kirk, 244 F.3d at 608, 22 BLR at 2-298-299. Subsequently, in Furgerson v. Jericol Mining, 22 BLR 1-216 (2002)(en banc), the Board held that the statute of limitations language in Kirk was not dicta. Employer did not contest the timeliness of the instant claim prior to this appeal before the Board. Director's Exhibit 34. While an appellate court generally will not address an issue that was not presented below, an exception is made when raising the issue would have been futile. Youakim v. Miller, 425 U.S. 231 (1976); Peabody Coal Co. v. Greer, 62 F.3d 801, 19 BLR 2-235 (6th Cir. 1995); The Youghiogheny and Ohio Coal Co. v. Warren, 841 F.2d 134, 11 BLR 2-73 (6th Cir. 1987); Kyle v. Director, OWCP, 819 F.2d 139, 10 BLR 2-112 (6th Cir. 1987), cert. denied, 488 U.S. 997 (1988). The Sixth Circuit issued its decision in Kirk on September 6, 2001, almost a year before the August 20, 2002 hearing in this case. However, the Board did not issue its decision in Furgerson until September 30, 2002, a month after the hearing. Since the Board, in Furgerson, clarified its position that the statute of limitations language in Kirk was not dicta only after the hearing was held in the instant case, it would have been futile for employer to raise this issue before the district director or the administrative law judge. Youakim, 425 U.S. at 234-235; Greer, 62 F.3d at 806, 19 BLR at 2-242; Warren, 841 F.2d at 138, 11 BLR at 2-79; Kyle, 819 F.2d at 142, 10 BLR at 2-115. Consequently, we hold that employer did not waive the issue of timeliness, and thus, we will consider employer's arguments regarding this issue. Furgerson, 22 BLR at 1-222; Abshire v. D & L Coal Co., 22 BLR 1-202 (2002).
Employer contends that the medical evidence submitted in the 1992 claim rebuts the presumption of timeliness in Section 725.308 in light of Kirk, as employer need only show that a medical determination of total disability due to pneumoconiosis was communicated to the claimant more than three years prior to the duplicate claim filing....
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