Killman v. Sahara Coal Co., BRB 01-0288 BLA

• Decision Date: 26 December 2001
• Docket Number: BRB 01-0288 BLA
• Court: Court of Appeals of Black Lung Complaints
• Parties: WILLIAM T. KILLMAN Claimant-Petitioner v. SAHARA COAL COMPANY Employer-Respondent DIRECTOR, OFFICE OF WORKERS'COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

WILLIAM T. KILLMAN Claimant-Petitioner
v.
SAHARA COAL COMPANY Employer-Respondent

DIRECTOR, OFFICE OF WORKERS'COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

BRB No. 01-0288 BLA

Court of Appeals of Black Lung

December 26, 2001

UNPUBLISHED OPINION

Appeal of the Denial of Benefits of Robert L. Hillyard, Administrative Law Judge, United States Department of Labor.

Sandra M. Fogel (Culley & Wissore), Carbondale, Illinois, for, claimant.

Erik A. Schramm (Hanlon, Duff, Paleudis & Estadt Co., LPA), St. Clairsville, Ohio, for employer.

Barry H. Joyner (Howard M. Radzely, 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: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM

Claimant appeals the Decision and Order --Denial of Benefits (1999-BLA-0760) of Administrative Law Judge Robert L. Hillyard rendered 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).^[1] Claimant's initial application for benefits filed on February 20, 1985 was ultimately denied on December 21, 1993 by an administrative law judge who found that claimant established the existence of pneumoconiosis arising out of coal mine employment, but did not establish that he was totally disabled by a respiratory or pulmonary impairment. Director's Exhibits 1, 29, 31, 36. Upon consideration of claimant's appeal, the Board affirmed the denial of benefits on June 23, 1994. Director's Exhibit 37.

On July 26, 1994, claimant, by counsel, moved for reconsideration of the Board's decision. The Board denied claimant's motion as untimely on January 6, 1995. Director's Exhibit 38. On January 13, 1995, claimant, by counsel, timely moved for reconsideration of the Board's January 6, 1995 order, arguing that his July 26, 1994 motion for reconsideration was timely. On May 11, 1995, the Board granted reconsideration of its January 6, 1995 order, but again concluded that claimant's July 26, 1994 motion for reconsideration was untimely, and denied relief. Director's Exhibit 39.

On January 23, 1996, claimant, then acting without counsel, filed a request for modification with the District Director of the Office of Workers' Compensation Programs. Director's Exhibit 40. The District Director initially found the request for modification to be timely, Director's Exhibit 41, but later reversed himself after employer was notified and responded that the Board's June 23, 1994 decision had become final and that claimant's modification request was filed more than one year after June 23, 1994. Director's Exhibits 45, 47; see 20 C.F.R. §725.310(a)(2000)(authorizing modification within "one year after the denial of a claim"). In a July 11, 1996 order denying the modification request as untimely, the District Director notified claimant that if he filed a claim form within six months of the District Director's order, the new claim would be deemed filed as of the date of claimant's untimely modification request. Director's Exhibit 47; see 20 C.F.R. §725.305(b)(a "written statement indicating an intention to claim benefits" must be perfected by filing a claim form within six months of notice from the District Director).

Claimant instead requested a hearing, and his case was referred to the Office of Administrative Law Judges and scheduled for a hearing before Administrative Law Judge Edward J. Murty. Prior to the scheduled hearing, claimant, who had by then retained counsel, moved for remand to the District Director so that claimant could file a new application for benefits. In claimant's motion, he stated that he now understood "that his modification request was untimely, " and "that there [was] no current application for black lung benefits on file." Motion for Remand to District Director, Oct. 6, 1997, at 2.

On October 20, 1997, claimant filed a new application for benefits with the District Director. Director's Exhibit 55. Approximately three weeks later, Judge Murty issued an order granting claimant's motion to remand the case. In the order, Judge Murty also ruled that claimant's January 12, 1996 letter requesting modification "must . . . be considered a new claim filed as of that date, " because the "letter of January 12, 1996 is certainly a writing from which an inference may be drawn that a claim for compensation is being made." Director's Exhibit 54 at 2. Judge Murty made no mention of either 20 C.F.R. §725.305 or the District Director's July 11, 1996 notice informing claimant of the need to timely file a claim form.

While claimant's application for benefits was being processed, claimant asserted that Judge Murty's ruling required that his new claim be considered filed on January 12, 1996. Director's Exhibit 72. Both the District Director and employer disagreed with claimant's position and contested this issue. Director's Exhibits 63, 70, 71, 84A, 93. At the hearing, claimant argued further that recently issued decisions supported his earlier contention that his motions for reconsideration filed with the Board tolled the time limit for requesting modification. Tr. at 24. Consequently, claimant returned to his previous position that his January 12, 1996 letter to the District Director constituted a timely request for modification. Id.; see also Claimant's Post-Hearing Brief, June 5, 2000, at 8-14.

In the Decision and Order --Denial of Benefits at issue in the instant case, Administrative Law Judge Robert L. Hillyard credited claimant with twenty-three years of coal mine employment pursuant to the parties' stipulation...