Pearce v. United Energies, Inc., BRB 01-0243 BLA
| Decision Date | 30 November 2001 |
| Docket Number | BRB 01-0243 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | HAROLD E. PEARCE Claimant-Respondent v. UNITED ENERGIES, INCORPORATED/ HARRISBURG COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Robert L. Hillyard Administrative Law Judge, United States Department of Labor.
Sandra M. Fogel (Culley & Wissore), Carbondale, Illinois, for claimant.
Mark E. Solomons (Greenberg Traurig LLP), Washington, D.C., for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order (99-BLA-0987) of Administrative Law Judge Robert L. Hillyard 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).[1] Claimant filed a duplicate claim on February 18, 1994.[2] By Decision and Order dated November 17, 1996, Administrative Law Judge Mollie W. Neal found that the evidence was sufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) and (a)(4) (2000). Judge Neal also found that claimant was entitled to a presumption that his pneumoconiosis arose out of his coal mine employment pursuant to 20 C.F.R §718.203(b)(2000). Judge Neal further found that the evidence was sufficient to establish that claimant was totally disabled pursuant to 20 C.F.R. §718.204(c) (2000) and that claimant's total disability was due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b) (2000). Judge Neal also found that the evidence was sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309 (2000). Accordingly, Judge Neal awarded benefits. By Decision and Order dated December 18, 1997, the Board affirmed Judge Neal's findings pursuant to 20 C.F.R. §§718.203(b)(2000) and 718.204(c) as unchallenged on appeal. Pearce v. United Energies, Inc., BRB No. 97-0456 BLA (Dec. 18, 1997) (unpublished). The Board also affirmed Judge Neal's findings pursuant to 20 C.F.R. §§718.202(a)(1) (2000), 718.204(b) (2000) and 725.309 (2000). Id. The Board, therefore, affirmed Judge Neal's award of benefits. Id.
Employer filed a timely motion for reconsideration and a request to establish the briefing schedule. By Order dated March 17, 1998, the Board granted employer's request for an extension of time in which to file its brief on reconsideration. The Board provided employer thirty days from receipt of the Board's Order to file its brief. By Order dated May 22, 1998, the Board held that employer's motion for reconsideration was moot because employer had failed to file a brief. Pearce v. United Energies, Inc., BRB No. 97-0456 BLA (May 22, 1998) (Order) (unpublished).
Employer subsequently filed a timely motion for reconsideration of the Board's May 22, 1998 Order, requesting the Board to reconsider its finding that employer's first motion for reconsideration was moot. Because employer had not provided an excusable reason for its failure to timely file its brief on reconsideration, the Board denied employer's subsequent motion for reconsideration.
Employer filed a timely motion for modification on December 23, 1998. Director's Exhibit 4. In a Decision and Order dated October 31, 2000, Administrative Law Judge Robert L. Hillyard (the administrative law judge) held, inter alia, that because pneumoconiosis is a progressive and irreversible disease, there could not be a showing of a change in conditions pursuant to 20 C.F.R. §725.310 (2000).[3] The administrative law judge further found that employer had ample opportunity to submit its new evidence while the case was pending before Judge Neal. Because employer failed to identify extraordinary circumstances to excuse its delay, the administrative law judge declined to consider this evidence. The administrative law judge, within a proper exercise of his discretion, further found that Judge Neal did not commit a mistake in a determination of fact pursuant to 20 C.F.R. §725.310 (2000). The administrative law judge, therefore, denied employer's motion for modification. On appeal, employer contends that the administrative law judge erred in denying employer's motion for modification. Employer argues, inter alia, that Judge Neal committed numerous errors in awarding benefits in the instant case. Employer has also filed a "Motion to Supplement Petition for Review" and a "Supplemental Employer's Brief." Claimant responds in support of the administrative law judge's award of benefits. The Director, Office of Workers' Compensation Programs, has not filed a response brief.
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).
On January 8, 2001, employer filed a "Motion to Supplement Petition for Review" and a "Supplemental Employer's Brief." On February 1, 2001, claimant filed a response brief.
By Order dated August 30, 2001, the Board stated:
20 C.F.R. §802.215. Pearce v. United Energies, Inc., BRB No. 01-0243 BLA (Aug. 30, 2001) (Order) (unpublished).
While we accept employer's supplemental brief, we reject employer's arguments contained therein. In its Supplemental Brief, employer challenges the administrative law judge's denial of its motion to compel claimant to provide employer with access to his records or to submit to an examination. On January 25, 2000, employer filed a "Motion for Order to Show Cause Why [Claimant] Should Not Provide Authorizations." By Order dated February 16, 2001, the administrative law judge held that:
The Courts and the Board have granted employers' requests for modification where the interests of, justice outweigh the need for finality in decisions. When the evidence an employer seeks to offer was, available or could have been developed at the time of the earlier proceeding, such requests are to be denied.
In the instant case, the Employer has made no specific allegations of error or mistakes in fact and did not, state how reopening the record would render justice under the Act. In its request for modification, Employer, generally alleges mistakes in determination of fact and stated "United believes that the decision to award, benefits in the instant case is mistaken and requests modification." In a letter to the District Director, the Employer requested time to submit additional evidence in support of its petition and to establish that the Administrative Law Judge erred in concluding that the Miner's pneumoconiosis progressed. As stated in, the cases cited above, "a bare claim of need to reopen to serve the interests of justice is not enough; a court, must balance the need to render justice against a need for finality in decision making." "Parties should not, be permitted to invoke § 22 to correct errors or misjudgements of counsel, nor to present a new theory, of the case when they discover a subsequent decision arguably favorable to their position."
For the reasons stated above, I find that the Employer has failed to state a sufficient cause for the, granting of its Motion. Administrative Law Judge's February 16, 2001 Order at 5-6.
An employer's right to have a claimant re-examined or to compel a claimant to respond to discovery requests pursuant to a request for modification is not absolute, and the determination of whether an employer is entitled to such examination or discovery rests within the discretion of the administrative law judge. Stiltner v. Wellmore Coal Corp., 22 BLR 1-37, 1-40-42 (2000) (en banc); Selak v. Wyoming Pocahontas Land Co., 21 BLR 1-173, 1-177-78 (1999) (en banc).[4]More specifically, the issue is whether employer "has raised a credible issue pertaining to the validity of the original adjudication...so that an order compelling claimant to submit to examinations or tests would be in the interest of justice." Selak, 21 BLR at 1-179. The same standard applies to an employer's motion to compel claimant to respond to discovery. See Stiltner, supra.
Under the facts of the instant case, we hold that the administrative law judge's basis for rejecting employer's requests for the development of additional evidence, i.e., that employer failed to make any specific allegation of error or mistakes in findings of fact and failed to state how reopening the record would render justice under the Act, constitutes a permissible exercise of his discretion. See Stiltner, supra.
In Labelle Processing Co. v. Swarrow, 72 F.3d 308, 315 20 BLR 2-76, 2-89 (3d Cir. 1995), the United States Court of Appeals for the Third Circuit noted that 20 C.F.R. §718.404(b) (2000)[5]effectuates Section 22 of the Longshore and Harbor Workers' Compensation Act by stating the grounds whereby an employer or the Department of Labor may seek modification based upon a change in conditions. In Plesh v. Director, OWCP, 71 F.3d 103, 109, 20 BLR 2-30, 2-41 (3d Cir. 1995), the Director argued that Section 718.404(b) authorizes the reopening of a case "only upon a...
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