Goodman v. Eastern Associated Coal Corp., BRB 97-1832 BLA
| Decision Date | 31 August 1999 |
| Docket Number | 97-1832 BLA-A,BRB 97-1832 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | WILLIAM MACK GOODMAN Claimant-Petitioner Cross-Respondent v. EASTERN ASSOCIATED COAL CORPORATION Employer DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent Cross-Petitioner |
UNPUBLISHED OPINION
Appeal of the Decision and Order - Dismissing Eastern Associated Coal, and Denying Benefits of Richard D. Mills Administrative Law Judge, United States Department of Labor.
Philip A. LaCaria, Welch, West Virginia, for claimant.
J Matthew McCracken (Henry L. Solano, Solicitor of Labor Donald S. Shire, Associate Solicitor; Rae Ellen Frank James Deputy Associate Solicitor; Richard A. Seid and 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: HALL, Chief Administrative Appeals Judge, SMITH, Administrative Appeals Judge and NELSON, Acting Administrative Appeals Judge.
DECISION AND ORDER
Claimant appeals and the Director, Office of Workers' Compensation Programs (the Director), cross-appeals the Decision and Order - Dismissing Eastern Associated Coal and Denying Benefits (96-BLA-1382) of Administrative Law Judge Richard D. Mills 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). The administrative law judge credited claimant with at least ten years of coal mine employment, based on a stipulation of the parties, and adjudicated the claim pursuant to 20 C.F.R. Part 718, in light of claimant's May 1995 filing date. In addition, the administrative law judge dismissed Eastern Associated Coal Corporation (EACC) as the putative responsible operator and found that the Black Lung Disability Trust Fund (Trust Fund) would be liable for the payment of benefits, if awarded. Addressing the merits of entitlement, the administrative law judge found the biopsy evidence sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2) and that the evidence was insufficient to rebut the presumption that claimant's pneumoconiosis arose out of his coal mine employment pursuant to 20 C.F.R. §718.203(b). The administrative law judge further found that the medical evidence of record was insufficient to establish the existence of complicated pneumoconiosis pursuant to 20 C.F.R. §§718.202(a)(3) and 718.304. However, the administrative law judge found the medical evidence of record sufficient to establish total respiratory disability pursuant to 20 C.F.R. §718.204(c) but that the evidence was insufficient to establish that claimant's total disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b). Accordingly, the administrative law judge denied benefits.
In challenging the administrative law judge's denial of benefits, claimant contends that the administrative law judge erred in finding the medical evidence insufficient to establish complicated pneumoconiosis pursuant to Section 718.304. In addition, claimant contends that the administrative law judge erred in failing to find that pneumoconiosis was a contributing cause of his total disability. In response, the Director urges affirmance of the administrative law judge's finding that the evidence was insufficient to establish the existence of complicated pneumoconiosis pursuant to Section 718.304. However, the Director concurs with claimant that the administrative law judge erred in finding that the evidence was insufficient to establish that claimant's total disability was due to pneumoconiosis pursuant to Section 718.204(b). The Director thus requests that the Board vacate the administrative law judge's Section 718.204(b) remand the case for further consideration. Employer has not filed a response brief in this appeal.[1]
In his cross-appeal, the Director contends that the administrative law judge erred in dismissing EACC as the responsible operator inasmuch as the Director is under no obligation to investigate whether the sole corporate officer of a putative responsible operator is capable of assuming financial liability for benefits and thus is not required to name the corporate officer as a separate possible responsible operator. Rather, the Director argues that the decision of whether to proceed against a corporate officer is a purely discretionary decision on the part of the Department of Labor. Neither claimant nor EACC has responded to the Director's cross appeal.
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is supported by substantial evidence, is rational, and is in accordance with applicable law. 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, we address the procedural issue raised in the Director's cross-appeal. The administrative law judge, in dismissing EACC as the putative responsible operator, found that the Department of Labor (DOL) failed to carry its burden of establishing that Bailey Energy, Incorporated (Bailey Energy), the company for which claimant was most recently employed for at least one (1) year, was financially incapable of assuming liability.[2] Decision and Order at 4. In particular, the administrative law judge found that DOL failed to adequately prove that Kennie Childers, Bailey Energy's sole corporate officer, was also financially incapable of assuming liability. Id. Citing Donovan v. McKee, 845 F.2d 70 (4th Cir. 1988) and 30 U.S.C. §933(d)(1), the administrative law judge found that DOL should have conducted a more detailed investigation into Mr. Childers's ability to assume financial liability and that, absent such an investigation, and because the regulations do not allow DOL the option of whether or not to pursue a possible responsible operator, the administrative law judge dismissed EACC, the most recent employer financially capable of assuming liability. Id. Thus, the administrative law judge found the Trust Fund liable for any benefits which may be payable in this case. Decision and Order at 5.
Subsequent to the issuance of the administrative law judge's Decision and Order, the Board held in Lester v. Mack Coal Co., 21 BLR 1-126 (1999)(Order on recon.)(en banc), that 30 U.S.C. §933(d)(1), and its implementing regulation, 20 C.F.R. §725.495(a), cannot be used to modify the definition of a responsible operator to include corporate officers. The Board held that the Director is not required to consider whether officers of a corporation can be held liable as responsible operators pursuant to 20 C.F.R. §725.491(a). Rather, the Director, at his discretion, may institute proceedings to impose a penalty on certain corporate officers of uninsured corporations, whose responsibility it is to maintain the company's insurance policies pursuant to Section 423 of the Act and Section 725.495(a), when they fail to secure the appropriate black lung insurance.[3] See Lester, supra; see also Mitchem v. Bailey Energy, Inc., et al, BLR, BRB Nos. 97-1757 BLA and 97-1757 BLA-A (July 26, 1999)(en banc).
The administrative law judge, therefore, relied on the mistaken assumption that the Director is required to determine whether the corporate officers of a potentially responsible operator are financially incapable of assuming liability for black lung payments, in addition to establishing that the potential operator itself is incapable of assuming liability, before designating the next most recent responsible operator. Decision and Order at 4-5. Inasmuch as the Director's decision to take enforcement action against corporate officers pursuant to Section 725.495 is discretionary, the administrative law judge erred in finding the Trust Fund liable in this case on the theory that the Director was obliged to enforce this provision. See Lester, supra; see also Mitchem, supra. Consequently, we vacate the administrative law judge's dismissal of EACC and remand the case for further consideration of the responsible operator issue in accordance with Lester and Mitchem. 20 C.F.R. §§725.491(a), 725.492(a), 725.493, 725.495(a); Lester, supra; Mitchem, supra.
Addressing the administrative law judge's findings on the merits, claimant challenges the administrative law judge's denial of benefits, contending that the administrative law judge erred in finding the medical evidence of record insufficient to establish the existence of complicated pneumoconiosis pursuant to Section 718.304. In particular, claimant contends that the record contains two diagnoses of complicated pneumoconiosis, i.e., the opinion of Dr. Jabour and the pathology report of Dr. Pia, and argues that the administrative law judge erred in failing to consider Dr. Pia's report in weighing the evidence relevant to the issue of complicated pneumoconiosis We disagree.
Contrary to claimant's contention, the medical report of Dr. Pia the pathologist who examined claimant's lung biopsy evidence, did not conclude that the biopsy evidence showed the existence of complicated pneumoconiosis. Rather, a review of Dr. Pia's report shows that the physician diagnosed findings compatible with coal workers' pneumoconiosis and chronic bronchitis. Claimant's Exhibit 1. Dr. Pia did not mention the existence of complicated pneumoconiosis, massive lesions, progressive massive fibrosis or any other indicia of complicated pneumoconiosis. Id. Consequently, we reject claimant's contention that the administrative law judge erred in failing to consider the medical report of Dr. Pia as supportive of a finding of complicated...
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