Hunt v. Jonida Trucking, Inc., BRB 95-0833 BLA

• Court: Court of Appeals of Black Lung Complaints
• Writing for the Court: HALL, Chief Administrative Appeals Judge
• Parties: ROBERT F. HUNT Claimant-Respondent v. JONIDA TRUCKING, INCORPORATED Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent
• Decision Date: 28 February 1996
• Docket Number: BRB 95-0833 BLA

ROBERT F. HUNT Claimant-Respondent
v.
JONIDA TRUCKING, INCORPORATED Employer-Petitioner

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent

BRB No. 95-0833 BLA

Court of Appeals of Black Lung

February 28, 1996

UNPUBLISHED OPINION

Appeal of the Decision and Order of Gerald M. Tierney, Administrative Law Judge, United States Department of Labor.

John G. Paleudis (Hanlon, Duff & Paleudis Co., L.P.A.), St. Clairsville, Ohio, for employer.

Kathleen M. Bole (J. Davitt McAteer, Acting 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 and McGRANERY, Administrative Appeals Judges.

DECISION and ORDER

HALL, Chief Administrative Appeals Judge

Employer appeals the Decision and Order on Remand and the Decision on Reconsideration (89-BLA-0228) of Administrative Law Judge Gerald M. Tierney awarding benefits 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). This claim is before the Board for the fifth time.^[1] Initially, the administrative law judge credited claimant^[2]with seventeen years of qualifying coal mine employment and found that employer is the proper responsible operator, that the Director stipulated to the existence of pneumoconiosis, and that claimant established the existence of a totally disabling respiratory impairment pursuant to 20 C.F.R. §718.204(c). Accordingly, benefits were awarded. Employer did not enter an appearance at the hearing. Hearing Transcript at 2

On reconsideration, the administrative law judge rejected employer's arguments that it relied on claimant's advice in failing to contest liability as the responsible operator and that claimant wanted to withdraw his claim. The administrative law judge also rejected employer's arguments regarding the weighing of the medical evidence. Decision and Order on Reconsideration dated August 28, 1991. On second reconsideration, the administrative law judge denied employer's argument that claimant wants to accept benefits only from the Black Lung Disability Trust Fund and not from employer. Decision and Order on Reconsideration dated October 8, 1991.

On appeal, the Board denied employer's request to dismiss the claim and remanded the case to the administrative law judge for consideration of claimant's request for withdrawal of the claim pursuant to 20 C.F.R. §725.306. Hunt v. Jonida Trucking, Inc., BRB Nos. 92-0524 BLA and 92-0124 BLA (Sep. 24, 1992)(unpub.). On remand, the administrative law judge held that withdrawal of the claim is not in claimant's best interest pursuant to Section 725.306. Accordingly, claimant's request to withdraw was denied and employer was ordered to continue monthly benefit payments. [1993] Decision and Order on Remand. On reconsideration, the administrative law judge considered the Director's request that employer be required to post a bond pursuant to 20 C.F.R. §§725.606 and 725.494 and ordered employer to secure the payment of $150, 000 as authorized by Section 725.606. Decision on Reconsideration dated November 10, 1994.

On appeal, employer contends that the administrative law judge erred in denying claimant's request to withdraw his claim, that employer is entitled to a hearing on the merits, that the claim should have been adjudicated as a request for modification, that the record does not support an award of benefits, that employer is not the proper responsible operator, and that employer should not be required to post a bond. Employer also moved to stay the administrative law judge's Order requiring a bond. The Director, Office of Workers' Compensation Programs (the Director) responds, arguing that employer lacks standing to contest the administrative law judge's decision not to allow the withdrawal, that employer waived its right to contest its designation as the responsible operator, and that the administrative law judge properly ordered employer to post bond.

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).

Employer contends that the administrative law judge erred in designating it as the responsible operator. Employer's Brief at 40. We reject this contention. The record reveals that employer failed to respond in any way to this claim, although it was served with a Notice of Claim, Director's Exhibit 23, and hearing notices dated October 16, 1989 and March 28, 1990. Further, employer did not contest the responsible operator issue, Director's Exhibit 30, when the case was referred to the Office of Administrative Law Judges for a formal hearing. Thus, employer is precluded from contesting its designation as responsible operator on appeal. See 20 C.F.R. §§725.413(b)(3), 725.421, 725.463; Kott v. Director, OWCP, 17 BLR 1-9 (1992); see generally Pyro Mining Co. v. Slaton, 879 F.2d 187, 12 BLR 2-328 (6th Cir. 1989); Krizner v. U.S. Steel Mining Co., Inc., 17 BLR 1-31 (1992)(en banc)(Brown, J., concurring; Smith, J., dissenting). Therefore, we affirm the administrative law judge's finding that employer is the properly designated responsible operator pursuant to 20 C.F.R. Part 725, Subpart F.

Employer next contends that it is now entitled to a hearing on the merits because it relied on statements from claimant that it would not be liable for benefits, if awarded, and thus failed to defend the claim. Employer's Brief at 22. A formal hearing was held on the merits of this claim on June 4, 1990, and employer...