Hurst v. Office of Workers' Compensation Programs, BRB 99-0647 BLA
| Decision Date | 08 March 2000 |
| Docket Number | BRB 99-0647 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | LEWIS F. HURST Claimant-Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Stuart A. Levin, Administrative Law Judge, United States Department of Labor.
S. F Raymond Smith (Rundle & Rundle), Pineville, West Virginia for, claimant.
Helen H. Cox (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 and BROWN, Administrative Appeals Judges.
DECISION and ORDER.
Claimant appeals the Decision and Order (97-BLO-0025) of Administrative Law Judge Stuart A. Levin denying claimant waiver of recovery of overpayment 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 is before the Board for the second time.[1] Originally, in a Decision and Order issued on February 24, 1994, Administrative Law Judge Edith Barnett stated that the sole issue in this case was whether in calculating the amount of offset by which claimant's federal benefits should be reduced, due to claimant's concurrent state award, see 30 U.S.C §§922(b), 932(g); 20 C.F.R. §§725.533(a)(1), 725.535(b), claimant was entitled to have excluded from that amount either one-hundred percent or sixty percent of the amount of claimant's attorney fees and medical expenses incurred in connection with his state award pursuant to 20 C.F.R. §725.535(d), inasmuch as sixty percent of claimant's state award was determined to be attributable to pneumoconiosis, see Director's Exhibits 55, 80. Judge Barnett found that there was no explanation provided in the record for the district director's determination that claimant was entitled to have excluded from the amount of offset only sixty percent of the amount of claimant's attorney fees and medical expenses or for the district director's determination that claimant's attorney was only entitled to $14, 725.43 in attorney fees in connection with claimant's state award. Thus, Judge Barnett vacated the district director's determination and remanded the case for the district director to recalculate the amount of offset to reflect that claimant was entitled to have of one-hundred percent of the amount of claimant's attorney fees and medical expenses, incurred in connection with his state award, excluded from the amount of offset and for the district director to provide a specific rationale for the recalculation.
The Director, Office of Workers' Compensation Programs (the Director), appealed and the Board noted that in Pickens v. Director, OWCP, 19 BLR 1-116 (1995), issued subsequent to Judge Barnett's Decision and Order, the Board had adopted the Director's method of computing the amount of legal and medical expenses that could be excluded from the amount of offset that federal benefits were subject to due to a concurrent state award pursuant to Section 725.535(d). See Director's Exhibit 88; Hurst v. Director, OWCP, BRB No. 94-2243 BLA (Jan. 26, 1996)(unpub.). The same method was utilized by the district director in this case, i.e., the same percentage of legal and medical expenses that claimant incurred in his state award could be excluded from the amount of offset as the percentage of the state award that was attributable to pneumoconiosis. Thus, the Board vacated Judge Barnett's rejection of the Director's calculation in this case and remanded the case for reconsideration. The Board also vacated Judge Barnett's rejection of the district director's determination that claimant's attorney was only entitled to $14, 725.43 in attorney fees in connection with claimant's state award, as that was the maximum amount of attorney fees to which claimant's attorney was entitled under West Virginia law, i.e., twenty percent of 208 weeks of state benefits, see W.V. Code §23-5-6 (Michie 1995) [formerly W.V. Code §23-5-5]; see Committee on Legal Ethics of the West Virginia State Bar v. Coleman, 377 S.E.2d 485 (W.Va., 1988). Thus, the Board held that claimant's attorney was only entitled to $14, 725.43 in attorney fees in connection with claimant's state award.
On remand, Judge Barnett remanded the case to the district director for recalculation of the amounts of the offset and overpayment in this case in accordance with the Board's holding in Pickens, supra. Director's Exhibit 91. The district director credited $8, 902.01, which represented sixty percent of the total of $14, 725.43 in attorney fees plus $111.25 in medical expenses claimant incurred in connection with his state award, against a like amount of federal benefits that claimant had received from April 8, 1987, the effective date of claimant's state award, through January, 1988, Director's Exhibit 92. The district director ultimately found a total overpayment of claimant's federal benefits received from February 1, 1988, through March, 1991, totaling $23, 046.80, representing sixty percent of the amount of claimant's concurrent state award which had not been offset from claimant's federal benefits. After claimant submitted an Overpayment Recovery Questionnaire, Director's Exhibit 95, the district director found claimant at fault in causing the overpayment because he accepted benefits which he knew or reasonably could have known to represent duplicate benefits and denied claimant waiver of recovery of the overpayment as the record failed to establish claimant's inability to make repayment, Director's Exhibit 96. In response, claimant contended that he was not at fault in the creation of the overpayment, Director's Exhibit 97, and the case was ultimately referred to the Office of Administrative Law Judges, Director's Exhibit 99.
Thus, the record reflects an overpayment in the amount of $23, 046.80, Decision and Order at 1; Director's Exhibit 92. In his Decision and Order at issue herein, the administrative law judge noted that the parties mutually waived a hearing in this case and requested a decision on the record regarding claimant's petition for a waiver of recovery of an overpayment or an adjustment of the amount of overpayment. The administrative law judge stated that at issue was the Director's "up front" method for calculating the amount of offset that claimant's federal benefits should be reduced due to claimant's receiving concurrent state benefits.[2] The administrative law judge found that the Board had upheld the Director's "up front" method for calculating the amount of offset in Cadle v. Director, OWCP, 18 BLR 1-57 (1994). Accordingly, the administrative law judge denied claimant's petition for waiver of recovery of the overpayment or an adjustment. On appeal, claimant contends that the administrative law judge erred in adopting the Director's "up front" method for calculating the amount of the overpayment and contends that the Department of Labor erroneously determined that claimant was at fault in the creation of the overpayment in this case. The Director responds, urging that the administrative law judge's Decision and Order be affirmed.
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).
The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, and the Board have held that Section 422(g) of the Act, 30 U.S.C. §932(g), as implemented by 20 C.F.R. §725.535(b), provides for offset of state payments received for concurrent periods for which federal benefits are awarded, see Harman Mining Co. v. Director, OWCP, 826 F.2d 1388, 10 BLR 2-291 (4th Cir. 1987), aff'g Stewart v. Harman Mining Co., 5 BLR 1-854 (1983); Ball v. Jewell Coal & Coke Co., 6 BLR 1-693 (1983); see also Bennett v. Director, OWCP, 18 BLR 1-48 (1994)(McGranery, J., concurring and dissenting); Lucas, supra. In addition, when a state award is premised upon a finding that a specific percentage of claimant's total disability is due to pneumoconiosis, the award is subject to offset and the percentage determines the amount of offset necessitated pursuant to Section 725.533(a). 30 U.S.C. §922(b); 20 C.F.R. §725.535; see Bennett, supra; Burnette v. Director, OWCP, 14 BLR 1-151 (1990); Lucas, supra.
Initially claimant contends that the administrative law judge erred in adopting the Director's "up front" method for calculating the amount of the overpayment. Claimant contends that there is no regulatory basis for the Director's "up front" method, which claimant contends does not credit claimant for attorney fees and medical expenses, incurred in connection with a state award, when calculating the amount of the overpayment as required by Section 725.535(d) and, therefore, penalizes claimant for obtaining additional, state benefits. Claimant also contends that the Director's "up front" method, in effect, adjusts the date of onset of disability in this case from April, 1987, when claimant's state benefits became effective, to February, 1988, the date from which the Director found the overpayment began, thereby increasing the amount of the overpayment. Finally, claimant...
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