Hurley v. Blazing Saddles Coal Corp., BRB 06-0758 BLA
| Decision Date | 27 July 2007 |
| Docket Number | BRB 06-0758 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | EDDIE HURLEY Claimant-Respondent v. BLAZING SADDLES COAL CORPORATION Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Daniel F. Solomon Administrative Law Judge, United States Department of Labor.
James D. Holliday, Hazard, Kentucky, for claimant.
Laura Metcoff Klaus (Greenberg Traurig), Washington, D.C., for employer.
Rita Roppolo (Jonathan L. Snare, Acting Solicitor of Labor; Allen H. Feldman, Associate Solicitor; Rae Ellen Frank James Deputy 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: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order (04-BLA-5245) of Administrative Law Judge Daniel F. Solomon 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 case involves a subsequent claim filed on January 3, 2002. [1] Because the administrative law judge found that claimant's initial claim was denied by reason of abandonment and included no findings on any applicable element of entitlement, he considered claimant's 2002 claim as an initial claim for benefits. The administrative law judge accepted employer's stipulations that claimant worked for thirteen years in coal mine employment and suffers from pneumoconiosis arising out of his coal mine employment. In his consideration of the remaining elements of entitlement, the administrative law judge found that the evidence established total disability pursuant to 20 C.F.R §718.204(b)(2)(i) and (iv). The administrative law judge also found that the evidence established that claimant's total disability is due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer argues that the administrative law judge erred in not addressing whether it was properly designated as the responsible operator. Employer also contends that the administrative law judge erred in determining that claimant's 2002 claim was an initial claim. Employer also argues that the administrative law judge erred in finding that the evidence established that claimant's total disability is due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). Finally, employer contends that the administrative law judge erred in awarding claimant augmented benefits on behalf of his stepchild. Claimant responds in support of the administrative law judge's award of benefits. The Director, Office of Workers' Compensation Programs, has filed a limited response, contending that the administrative law judge erred in not addressing whether employer was properly designated the responsible operator. In a reply brief, employer reiterates its previous contentions.
The Board must affirm the findings of the administrative law judge if they are supported by substantial evidence, are rational, and are in accordance with applicable law. 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 (1965).
In order to establish entitlement to benefits under 20 C.F.R. Part 718 in a living miner's claim, a claimant must establish the existence of pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Gee v. W. G. Moore and Sons, 9 BLR 1-4 (1986) (en banc); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
Employer initially argues that the administrative law judge erred in not addressing whether it was properly designated as the responsible operator. We agree. When the case was before the district director, employer contested its identity as the responsible operator. [2] Director's Exhibits 21, 28. When the case was forwarded to the Office of Administrative Law Judges, the identity of the responsible operator was listed as a contested issue. Director's Exhibit 37. In an Order dated April 21, 2005, the administrative law judge advised employer:
The identified responsible operator shall serve notice upon all parties not less than thirty (30) days prior to the scheduled hearing date, with a copy to the Administrative Law Judge, if it intends to allege that it was improperly identified as the responsible operator, including a brief statement of the particulars setting forth their reasons and copies of documents relied upon, if not already part of the file.
Order dated April 21, 2005.
At the November 1, 2005 hearing, employer indicated that it continued to contest its designation as the responsible operator. Transcript at 8. The administrative law judge reminded employer that he had previously requested that employer inform him, not less than thirty days prior to the hearing, whether it intended to allege that it was improperly identified as the responsible operator. Id. at 9. Employer responded that it had contested its identification throughout the entire claim and had never stipulated to its designation as the responsible operator. Id. Although the administrative law judge indicated that he would “come back to that issue, ” he did not subsequently make a finding regarding the responsible operator issue at the hearing. Id. The administrative law judge also did not address whether employer was properly designated as the responsible operator in his Decision and Order.
Because the administrative law judge did not address the issue of the responsible operator, we remand the case to the administrative law judge for his consideration of this issue.
Employer next argues that the administrative law judge erred in determining that claimant's 2002 claim was an initial claim for benefits. Because the administrative law judge found that claimant's abandoned 1993 claim did not include any findings on any of the applicable conditions of entitlement, the administrative law judge considered claimant's 2002 claim as “an initial claim for benefits.” Decision and Order at 2.
Claimant's 2002 claim is considered a “subsequent” claim under the amended regulations because it was filed more than one year after the date that claimant's prior 1993 claim was finally denied. 20 C.F.R. §725.309(d). The regulations provide that a subsequent claim “shall be denied unless the claimant demonstrates that one of the applicable conditions of entitlement . . . has changed since the date upon which the order denying the prior claim became final.” Id. The district director denied claimant's 1993 claim by reason of abandonment. Director's Exhibit 40. The regulations provide that, “[f]or purposes of §725.309, a denial by reason of abandonment shall be deemed a finding that the claimant has not established any applicable condition of entitlement.” 20 C.F.R. §725.409(c). Consequently, the administrative law judge erred in treating claimant's 2002 claim as an initial claim.
However, under the facts of this case, the administrative law judge's error is harmless. See Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984). Because employer conceded that claimant suffers from coal workers' pneumoconiosis, claimant established that an applicable condition of entitlement has changed since the denial of his previous claim pursuant to 20 C.F.R. §725.309. [3] Therefore, the administrative law judge properly considered claimant's 2002 claim on the merits, based on a weighing of all of the evidence of record. [4] See Shupink v. LTV Steel Corp., 17 BLR 1-24 (1992).
Employer also argues that the administrative law judge erred in finding that the evidence established that claimant's total disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). The United States Court of Appeals for the Sixth Circuit, within whose jurisdiction this case arises, has held that a claimant must establish that his totally disabling respiratory impairment is due “at least in part” to his pneumoconiosis. Adams v Director, OWCP, 886 F.2d 818, 13 BLR 2-52 (6th Cir. 1989); Peabody Coal Co. v. Smith, 127 F.3d 504, 21 BLR 2-180 (6th Cir. 1997).
Revised Section 718.204(c)(1) provides that:
In considering whether the evidence established that claimant's totally disabling respiratory impairment is due to pneumoconiosis, the administrative law judge considered the opinions of Drs. Alam and Rosenberg. The administrative law judge noted that while Dr. Alam opined that claimant's disability is due, at least in part, to coal dust exposure and pneumoconiosis, Director's Exhibit 12; Claimant's Exhibit 3, Dr. Rosenberg attributed claimant's disability to chronic obstructive pulmonary disease...
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