Keil v. Peabody Coal Co.
| Decision Date | 29 June 2001 |
| Docket Number | BRB 00-0746 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | MAELENE V. KEIL Widow of MELVIN J. KEIL Claimant-Respondent v. PEABODY COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Survivor's Benefits of Thomas M. Burke, Administrative Law Judge, United States Department of Labor.
Thomas E. Johnson and Anne Megan Davis (Johnson, Jones, Snelling Gilbert & Davis), Chicago, Illinois, for claimant.
W William Prochot (Greenberg Traurig LLP), Washington, D.C for, employer.
Michelle S. Gerdano (Judith E. Kramer, 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.
Employer appeals the Decision and Order Awarding Survivor's Benefits (99-BLA-0442) of Administrative Law Judge Thomas M Burke on a survivor's 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).[1] This case is before the Board for the second time.[2] The administrative law judge found twenty-two years of coal mine employment established, as agreed to by the parties, and adjudicated the survivor's claim pursuant to 20 C.F.R. Part 718. While the administrative law judge found that the existence of pneumoconiosis was not established pursuant to 20 C.F.R. §718.202(a)(1) and (3), the administrative law judge found that it was established by the autopsy evidence of record pursuant to 20 C.F.R. §718.202(a)(2) and by the medical opinion evidence pursuant to 20 C.F.R. §718.202(a)(4). The administrative law judge further found that death due to pneumoconiosis was established pursuant to 20 C.F.R. §718.205(c). Accordingly, benefits were awarded. On appeal, employer initially contends that the administrative law judge did not have jurisdiction to consider this claim. Alternatively, employer contends that the administrative law judge erred in failing to determine whether claimant established a basis for modification pursuant to 20 C.F.R. §725.310 (2000), as well as in finding the existence of pneumoconiosis established pursuant to Section 718.202(a)(2) and(4), and death due to pneumoconiosis established pursuant to Section 718.205(c). Claimant responds, urging that the administrative law judge's Decision and Order Awarding Survivor's Benefits be affirmed. The Director, Office of Workers' Compensation Programs (the Director), as a party-in-interest, has not responded to this appeal.
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).
Pursuant to Section 22 of the Longshore and Harbor Workers' Compensation Act (Longshore Act), 33 U.S.C. §922, as incorporated into the Act by 30 U.S.C. §932(a) and as implemented by 20 C.F.R. §725.310 (2000), a party may request modification of a denial on the grounds of a change in conditions or because of a mistake in a determination of fact. In order to establish entitlement in this survivor's claim filed after January 1, 1982, in which the miner had not been awarded benefits on a claim filed prior to January 1, 1982, see 30 U.S.C. §§901; 932(1), claimant must establish the existence of pneumoconiosis, see 20 C.F.R. §718.202; Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993); Neeley v. Director, OWCP, 11 BLR 1-85 (1988), and that the miner's death was due to pneumoconiosis, see 20 C.F.R. §§718.1; 718.205(c); Neeley, supra; cf. Smith v. Camco Mining, Inc., 13 BLR 1-17 (1989), which arose out of coal mine employment, see 20 C.F.R. §718.203; Boyd v. Director, OWCP, 11 BLR 1-39 (1988).[3] Moreover, the United States Court of Appeals for the Seventh Circuit, within whose jurisdiction this case arises, has held that a survivor may demonstrate that pneumoconiosis was a substantially contributing cause or factor leading to the miner's death pursuant to 20 C.F.R. §718.205(c)(2) by demonstrating that the miner's pneumoconiosis resulted in hastening the miner's death to any degree, see also 20 C.F.R. §718.205(c)(5). Peabody Coal Co. v. Director, OWCP [Railey], 972 F.2d 178, 16 BLR 2-121 (7th Cir. 1992).
Initially, employer contends that the administrative law judge did not have jurisdiction to consider this survivor's claim because claimant has filed "multiple" requests for modification, which employer contends is contrary to the applicable statute and regulations and the holding of the Seventh Circuit in Midland Coal Co. v. Director, OWCP [Lumen], 149 F.3d 558, 21 BLR 2-451 (7th Cir. 1998). Alternatively, employer contends that claimant's most recent request for modification was untimely filed and, therefore, should be considered a duplicate survivor's claim pursuant to 20 C.F.R. §725.309(d)(2000) and be denied as a matter of law. Finally, employer contends that allowing claimant to file multiple requests for modification has violated employer's due process rights and, therefore, that employer cannot be held liable for benefits.
The Seventh Circuit held in Midland that under the applicable regulations, see 20 C.F.R. §§802.403, 802.407, a party's appeal of an original decision by the Board must be filed within 60 days of the Board's denial of the party's first timely motion for reconsideration, and that a subsequent motion for reconsideration to the Board does not toll the time to appeal the original decision by the Board, but only the time to appeal the denial of the previous motion for reconsideration, see Section 10(c) of the Administrative Procedures Act, 5 U.S.C. §704; Midland, supra.
However, in this case, contrary to employer's contentions, claimant did not seek appellate review after the Board's previous denial of claimant's second motion for reconsideration of the Board's decision affirming the denial of benefits, Director's Exhibit 76; Mills, BRB No. 91-1369 BLA (Aug. 30, 1996)(on recon.), but filed a motion for modification on June 20, 1997, Director's Exhibit 80, which is the only motion for modification filed by claimant in this survivor's claim. Section 22 of the Longshore Act, 33 U.S.C. §922, as incorporated into the Act by Section 422(a), 30 U.S.C. §932(a), as implemented by 20 C.F.R. §725.310, allows for modification of a claim at anytime prior to one year after the "rejection" of a claim, and Section 21(a) of the Longshore Act, 33 U.S.C. §921(a), as incorporated into the Act by 30 U.S.C. §932(a), provides that a compensation order becomes final at the expiration of the thirtieth day after it is filed in the office of the district director "unless proceedings for... setting aside the order are instituted as provided" in Section 21(b). Reading Sections 21 and 22 of the Longshore Act together and noting that an order does not become final when a petition for review is pending, the Board has held that a claim is not "rejected" within the meaning of Section 22 until the conclusion of appellate proceedings and, therefore, has held that a party may request modification of the denial of a claim by the administrative law judge within one year after the conclusion of appellate proceedings, see Garcia v. Director, OWCP, 12 BLR 1-24 (1988); Hall v. Director, OWCP, 8 BLR 1-193 (1985); see also Stanley v. Betty B Coal Co., 13 BLR 1-72 (1990). Thus, inasmuch as the prior appellate proceedings before the Board did not conclude until the Board denied claimant's second motion for reconsideration on August 30, 1996, see Director's Exhibit 76; Mills, BRB No. 91-1369 BLA (Aug. 30, 1996)(on recon.), claimant's subsequent motion for modification filed on June 20, 1997, Director's Exhibit 80, was timely filed. Consequently, we reject employer's contentions.
Next, employer contends that the administrative law judge erred in considering the case on the merits without making any findings as to whether claimant established a basis for modification based on a mistake in a determination of fact and/or whether modification would render justice under the Act or violated employer's due process rights. In considering the autopsy evidence pursuant to Section 718.202(a)(2), the administrative law judge noted that because this claim "is being analyzed under the modification provisions at 20 C.F.R. §725.310, it is within the undersigned's discretion to weigh the autopsy evidence differently from that of the previous administrative law judges, " Decision and Order at 19 n. 14.[4]
The intended purpose of modification based on a mistake in fact is to vest the fact-finder "with broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted" in an effort to render justice under the Act, see O'Keeffe v Aerojet-General Shipyards, Inc., 404 U.S. 254, 257 (1971); see also Amax Coal Co. v. Franklin, 957 F.2d 355, 16 BLR 2-50 (7th Cir. 1992)("[a] reviewing court cannot exercise the discretion of the responsible officer - it's his discretion to exercise - save in the unusual case where there is only one decision he could make that...
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