Mann v. Turner Brothers, Inc.
| Decision Date | 29 August 2012 |
| Docket Number | BRB 11-0795 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BOBBY D. MANN Claimant-Petitioner v. TURNER BROTHERS, INCORPORATED and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Denying Claimant's Third Petition for Modification of Thomas M. Burke, Administrative Law Judge, United States Department of Labor.
Bobby D. Mann, Wister, Oklahoma, pro se.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Claimant without the assistance of counsel, appeals the Decision and Order Denying Claimant's Third Petition for Modification (08-BLA-0013) of Administrative Law Judge Thomas M. Burke rendered on a claim filed on November 17, 1986, pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C §§901-944 (2006), amended by Pub. L. No 111-148, §1556, 124 Stat. 119 (2010) () (the Act). [1] This case involves a request for modification of a duplicate claim. [2]
The pertinent procedural history of this case is as follows: Claimant filed his first claim on September 23, 1974. Director's Exhibit 31. It was finally denied by the district director on August 14, 1979 because claimant failed to establish any of the elements of entitlement. Id. Claimant filed his second claim (a duplicate claim) on April 25, 1983. Director's Exhibit 30. It was finally denied by the district director on March 14, 1984 because claimant failed to establish any of the elements of entitlement. Id. Claimant filed his third claim (a duplicate claim) on November 17, 1986. Director's Exhibit 1. On March 9, 1988, Administrative Law Judge Aaron Silverman issued a Decision and Order denying benefits because claimant failed to establish a material change in conditions at 20 C.F.R. §725.309 (2000). [3] Director's Exhibit 33. By Order dated October 7, 1991, the Board remanded the case to the Office of Administrative Law Judges in light of the holding of the United States Court of Appeals for the Tenth Circuit in Lukman v. Director, OWCP, 896 F.2d 1248, 13 BLR 2-332 (10th Cir. 1990). Mann v. Turner Brothers, Inc., BRB No. 88-1303 BLA (Oct. 7, 1991)(unpub. Order). In a Decision and Order dated February 16, 1995, Administrative Law Judge Robert S. Amery credited claimant with at least 15 years of coal mine employment and found that claimant established the existence of pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a)(4) and 718.203(b). Director's Exhibit 46. Judge Amery also found that claimant failed to establish total respiratory disability at 20 C.F.R. §718.204(c) (2000). Id. Judge Amery further found that claimant failed to establish a material change in conditions at 20 C.F.R. §725.309 (2000). Id. Accordingly, Judge Amery denied benefits. Id. In response to claimant's appeal, the Board affirmed Judge Amery's length of coal mine employment finding, his findings that claimant established the existence of pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a)(4) and 718.203(b), and his finding that claimant failed to establish total respiratory disability at 20 C.F.R. §718.204(c) (2000). [4] Mann v. Turner Brothers, Inc., BRB No. 95-1197 BLA (Feb. 15, 1996)(unpub.). [5] The Tenth Circuit affirmed the Board's Decision and Order, which affirmed Judge Amery's denial of benefits. Mann v. Director, OWCP, No. 96-9509 (10th Cir. Feb. 11, 1997).
By letters dated March 13, 1997, March 17, 1997 and April 3, 1997, claimant indicated that he wished to appeal the Tenth Circuit's decision. On March 9, 1998, claimant filed his fourth claim, Director's Exhibit 56, which a claims examiner denied on July 24, 1998 because claimant failed to establish a material change in conditions at 20 C.F.R. §725.309 (2000). Director's Exhibit 62. However, on September 5, 2000, the district director construed claimant's 1997 letters as a request for modification of the Tenth Circuit's decision denying benefits, and determined that claimant was entitled to benefits. Director's Exhibit 81. Employer requested a formal hearing on September 15, 2000. Director's Exhibit 82. In a Decision and Order dated December 10, 2002, Administrative Law Judge Pamela Lakes Wood found that claimant established total respiratory disability, but failed to establish the existence of clinical or legal pneumoconiosis. Director's Exhibit 100. Accordingly, Judge Wood denied benefits. Id. The Board affirmed Judge Wood's denial of benefits. Mann v. Turner Brothers, Inc., BRB No. 03-0284 BLA (Sept. 24, 2003)(unpub.). Further, the Board denied claimant's motion for reconsideration. Mann v. Turner Brothers, Inc., BRB No. 03-0284 BLA (Jan. 26, 2004)(unpub. Order on Recon.).
Claimant filed another request for modification on May 11, 2004. Director's Exhibit 120. In a Decision and Order dated October 4, 2005, Administrative Law Judge Thomas M. Burke (the administrative law judge) found that the new evidence did not establish a change in conditions and that Judge Wood's decision did not contain a mistake in a determination of fact at 20 C.F.R. 725.310 (2000). Director's Exhibit 167. Accordingly, the administrative law judge denied benefits. Id. The Board affirmed the administrative law judge's denial of benefits. Mann v. Turner Brothers, Inc., BRB No. 06-0166 BLA (Sept. 27, 2006)(unpub.). Further, the Board denied claimant's motion for reconsideration. Mann v. Turner Brothers, Inc., BRB No. 06-0166 BLA (Dec. 19, 2006) (unpub. Order on Recon.). Moreover, following claimant's appeal, the Tenth Circuit granted claimant's motion to dismiss the case. Mann v. Director, OWCP, No. 07-9501 (10th Cir. Feb. 21, 2007).
Claimant filed this request for modification on January 14, 2008. Director's Exhibit 179. In a Decision and Order Denying Claimant's Third Petition for Modification dated April 26, 2011, the administrative law judge found that the new evidence did not establish a change in conditions and the previous decision did not contain a mistake in a determination of fact at 20 C.F.R. §725.310 (2000). Accordingly, the administrative law judge denied benefits.
On appeal, claimant generally challenges the administrative law judge's denial of benefits, but specifically contends that the administrative law judge did not consider all of the new evidence and that he erred in admitting Dr. Repsher's deposition into the record. Employer responds, contending that the Board does not have jurisdiction of this case because the appeal was not timely filed. Alternatively, employer urges affirmance of the administrative law judge's denial of benefits because it is supported by substantial evidence. The Director, Office of Workers' Compensation Programs, has declined to file a substantive brief in this appeal, but notes that the amendments under Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4), do not apply in this case because the instant claim was filed before January 1, 2005.
In an appeal filed by a claimant without the assistance of counsel, the Board considers the issue raised on appeal to be whether the Decision and Order below is supported by substantial evidence. McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must affirm the administrative law judge's Decision and Order if the findings of fact and conclusions of law are rational, supported by substantial evidence, and in accordance with law. [6] 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).
In order to establish entitlement to benefits in a living miner's claim filed pursuant to 20 C.F.R. Part 718, claimant must establish that he is totally disabled due to pneumoconiosis arising out of coal mine employment. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes entitlement. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989).
Initially, we will address employer's contention that the Board does not have jurisdiction in this case because claimant's appeal is untimely. Specifically, employer argues that claimant's appeal was not filed within 30 days of the administrative law judge's first Order denying reconsideration. Employer maintains that the administrative law judge's second Order denying reconsideration did not toll the period for an appeal, citing Betty B Coal Company v. Director, OWCP [Stanley], 194 F.3d 491, 22 BLR 2-1 (4th Cir. 1999); Midland Coal Co. v. Director, OWCP [Luman], 149 F.3d 558, 21 BLR 2-451 (7th Cir. 1998); and Peabody Coal Co. v. Abner, 118 F.3d 1106, 21 BLR 2-154 (6th Cir. 1997). We disagree.
An administrative law judge's decision or order becomes final and effective when it is filed with the district director unless it is appealed within 30 days after being filed. 20 C.F.R. §802.205(a). A request for reconsideration of an administrative law judge's decision or order, within 30 days of its filing, will toll the time for filing an appeal of the decision or order with the Board. 20 C.F.R. §802.206(a), (b)(2). Further, Section 802.206(f) contemplates one appeal of a case and provides that, if a motion for reconsideration is filed with the administrative law judge, a previously filed notice of appeal is premature and any party desiring Board review must wait until the administrative law judge resolves the motion and files his decision or order. 20 C.F.R. §802.206(f). Moreover, the applicable regulations place no...
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