Hannah v. Hansford Coal Co., BRB 14-0152 BLA
| Decision Date | 07 April 2015 |
| Docket Number | BRB 14-0152 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | DREMA G. HANNAH (Widow of SHERMAN G. HANNAH) Claimant-Respondent v. HANSFORD COAL COMPANY and WEST VIRGINIA COAL WORKERS' PNEUMOCONIOSIS FUND Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits in Miner's and Survivor's Claims of Lystra A. Harris, Administrative Law Judge, United States Department of Labor.
Jeffrey R. Soukup (Jackson Kelly PLLC), Lexington, Kentucky for carrier.
Ann Marie Scarpino (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: HALL, Acting Chief Administrative Appeals Judge, McGRANERY and BUZZARD, Administrative Appeals Judges.
Carrier appeals the Decision and Order Awarding Benefits in Miner's and Survivor's Claims (2011-BLA-06038 and 2011-BLA-00004) of Administrative Law Judge Lystra A. Harris (the administrative law judge), rendered on claims filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2012) (the Act). Specifically, carrier challenges the administrative law judge's decision that employer, not the Black Lung Disability Trust Fund (Trust Fund), is liable for payment of compensation resulting from an underpayment of benefits to the miner. The administrative law judge directed employer to pay all benefits owed to the miner. Carrier does not challenge the administrative law judge's decision in the survivor's claim directing employer to pay claimant[1] survivor's benefits pursuant to amended Section 932(l) because the miner was entitled to receive black lung benefits at the time of his death.[2]
On appeal, carrier asserts that the administrative law judge's decision to hold employer liable for the payment of benefits resulting from the underpayment of benefits to the miner, in the amount of $114, 760.80, [3] covering the period between August 1, 1990 and February 1, 2010, constituted a violation of employer's due process rights. Carrier maintains that employer was not at fault for the underpayment, which resulted from a calculation error made by the Office of Workers' Compensation Programs (OWCP) in 1993. Claimant has not filed a response brief. The Director, OWCP (the Director), has filed a response, urging the Board to reject carrier's due process argument and affirm the administrative law judge's decision directing employer to pay claimant the amount of the underpayment. Carrier has filed a reply brief, reiterating its position.
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.[4] 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, 361-62 (1965).
The procedures governing the computation and payment of benefits, and the assessment of an underpayment, are set forth in 20 C.F.R. §§725.502, 725.533 and 725.548. The regulation at 20 C.F.R. §725.502(b)(1) provides, “[w]hile an effective order requiring the payment of benefits remains in effect, monthly benefits, at the rates set forth in [20 C.F.R.] §725.520, shall be due on the fifteenth day of the month following the month for which benefits are payable.” Pursuant to 20 C.F.R. §725.502(b)(2), “[w]ithin 30 days after the issuance of an effective order requiring the payment of benefits, the district director shall compute the amount of benefits payable for periods prior to the effective date of the order, in addition to any interest payable for such periods (see [20 C.F.R.] §725.608), and shall so notify the parties.” An administrative law judge's Decision and Order awarding benefits constitutes an effective order, even when the award is appealed to the Board, provided that the Board does not issue a stay. 20 C.F.R. §725.502(a)(1). Under 20 C.F.R. §725.533(a)(1), a reduction in the amount of benefits paid is required when a claimant receives “[a]ny compensation or benefits . . . under any [s]tate workers' compensation law because of death or partial or total disability due to pneumoconiosis.” The regulation at 20 C.F.R. §725.545(a) defines an underpayment of benefits as “nonpayment where some amount of such benefits is payable.” In a case in which the claimant dies before the underpayment is adjusted, “such payment shall be distributed” to the claimant's survivors in the order of priority mandated by regulation. 20 C.F.R. §725.545(c). When the OWCP recognizes that an underpayment has occurred, it “may take any necessary action, and district directors may issue appropriate orders to protect the rights of the parties.” 20 C.F.R. §725.548(a).
In this case, the miner filed a claim for federal black lung benefits on August 8, 1990. Before this claim came before an administrative law judge, the West Virginia Workers' Compensation Fund notified the miner, in a letter dated October 28, 1991, of an adjustment to the October 17, 1978 award of state benefits, explaining:
It appearing [the miner] has suffered a 15% permanent partial disability as a result of occupational pneumoconiosis, and it appearing further that [the miner] suffers from pre-existing permanent disability attributable to multiple prior injuries, and through the combined effect of these injuries is now permanently and totally disabled within the meaning of the Workers' Compensation Law.
Miner's Claim Director's Exhibit 33. On July 30, 1993, Administrative Law Judge Robert J. Feldman issued a Decision and Order Awarding Benefits in the miner's federal claim and designated August 1, 1990 as the date on which benefits should commence. 1993 Decision and Order at 4. Judge Feldman acknowledged that the miner had been “awarded State Workers' Compensation on October 17, 1978, based upon a finding of occupational pneumoconiosis in advanced stage with 15% pulmonary functional impairment, ” and noted that the Id. at 2. Carrier appealed the award of federal black lung benefits to the Board.
Pursuant to Judge Feldman's award of benefits, the district director calculated the amount of benefits to which the miner was entitled and, in a letter dated November 30, 1993, advised the miner:
The West Virginia Workers' Compensation Division has sent an update to your claim . . . which states your entitlement to a permanent total disability award of 15% beginning May 19, 1991. Your award was assessed against the Second Injury Reserve carrying payments for life at the benefit rate provided by statute of West Virginia.
Therefore, [employer] and [the] West Virginia Workers' Compensation Fund[, ] which was requested to assume responsibility for the payment of your benefits[, ] has only to pay you for the period August, 1990 through April, 1991. Then continue your monthly rate of West Virginia compensation because it is higher than the federal rate of $627.30 which is total offset (no duplicate payments).
Miner's Claim Director's Exhibit 23. The district director further concluded that employer was liable for $5, 110.20 in back benefits, covering the period from August 1990 to April 1991. Id. Employer also received a copy of this letter.
Subsequently, carrier filed a motion with the Board, dated December 14, 1993, requesting dismissal of its appeal, after “carefully reviewing the evidence.” Miner's Claim Director's Exhibit 25. By Order dated December 30, 1993, the Board dismissed the appeal in the miner's claim and Judge Feldman's award of benefits became final. Hannah v. Hansford Coal Co., BRB No. 93-2333 BLA (Dec. 30, 1993) (unpub. Order); Miner's Claim Director's Exhibit 26.
On April 27, 1994, the OWCP mailed a Federal Black Lung Benefits Verification form to the miner. Miner's Claim Director's Exhibit 24. The miner indicated on the form that he was receiving monthly payments of $1, 600.07 pursuant to his state workers' compensation claim, based on his disability from black lung disease. Id. The miner died on March 29, 2010. Survivor's Claim Director's Exhibit 1. On April 21, 2010, claimant, the miner's surviving spouse, filed a claim for federal black lung survivor's benefits. Id.
The district director determined that claimant satisfied the eligibility criteria for automatic entitlement to benefits pursuant to amended Section 932(l), and issued a Proposed Decision and Order on June 14, 2010, awarding survivor's benefits to claimant. Carrier requested modification of the miner's claim and a hearing in the survivor's claim, disputing all issues related to entitlement. Survivor's Claim Director's Exhibits 15, 30.
On March 4, 2011, claimant asked the OWCP to confirm that the miner had been paid all of the monthly federal black lung benefits that he was entitled to receive during his lifetime. Miner's Claim Director's Exhibit 32. Pursuant to claimant's request, the district director reviewed the miner's claim and discovered that the initial calculation of the miner's benefits was incorrect. On March 17, 2011 the district director issued an Amended Award of Benefits, modifying the terms of the miner's award of benefits pursuant to 20 C.F.R. §725.310. Miner's Claim Director's Exhibit 34. The district director found that only 15% of the miner's state workers' compensation award was for pneumoconiosis, which should have resulted in only a partial...
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