R.C. v. Peabody Coal Co.
| Decision Date | 25 September 2008 |
| Docket Number | BRB 07-0903 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | R.C. 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UNPUBLISHED OPINION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 of John M. Vittone, Chief Administrative Law Judge, United States Department of Labor.
Jared L. Bramwell (Kelly & Bramwell, P.C.), Draper, Utah, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer.
Richard A. Seid (Gregory F. Jacob, Solicitor of Labor; Rae Ellen Frank James, Acting Associate Solicitor of Labor 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 HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order (05-BLA-0075) of Chief Administrative Law Judge John M. Vittone 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 claim for benefits on September 19, 2000. However, the administrative law judge found that an earlier claim, filed by claimant on May 22, 1997, was still pending. Specifically, the administrative law judge found that the district director, in denying claimant's 1997 claim, did not properly act upon claimant's hearing request. The administrative law judge, therefore, found that claimant's 1997 claim was still pending, and he merged the 2000 claim with the 1997 claim. See 20 C.F.R. §725.309(d) (2000). [2] In his consideration of the merits of claimant's 1997 claim, [3]the administrative law judge found that the evidence established the existence of complicated pneumoconiosis, thereby enabling claimant to establish entitlement based on the irrebuttable presumption of total disability due to pneumoconiosis at 20 C.F.R. §718.304. The administrative law judge also found that claimant was entitled to the presumption that his complicated pneumoconiosis arose out of his coal mine employment pursuant to 20 C.F.R §718.203(b) and that employer did not rebut the presumption. Accordingly, the administrative law judge awarded benefits.
On appeal, employer argues that the administrative law judge erred in finding that claimant's 1997 claim was still pending. In the event that claimant's 1997 claim was properly found to be pending, employer contends that it cannot be held liable for the payment of benefits. Employer also argues that the administrative law judge erred in finding that the evidence established the existence of complicated pneumoconiosis pursuant to 20 C.F.R. §718.304. Claimant responds in support of the administrative law judge's award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, contending that, “on the facts of this case [and] given basic concerns of fairness, ” the administrative law judge properly found that claimant's 1997 claim was still pending because his request for a hearing was not honored by the district director. Director's Brief at 6. The Director also urges the Board to reject employer's contention that it must be released from liability because its due process rights were violated.
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence, and 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).
Employer initially contends that the administrative law judge erred in finding that claimant's 1997 claim was still pending.
Claimant initially filed a claim for benefits on May 22, 1997. Director's Exhibit 29. The district director denied benefits on September 26, 1997. Id. In the denial letter, the district director advised claimant:
Your claim can be scheduled for a formal hearing conducted by the Office of Administrative Law Judges of the United States Department of Labor. An informal conference may be scheduled prior to the hearing if it appears a conference would be helpful in resolving your claim. If you want a hearing, you must make your request within sixty (60) days of the date of this letter unless you notify us that you intend to submit additional evidence.
Director's Exhibit 29.
Claimant, without the assistance of counsel, filed a letter on November 7, 1997, stating that:
I . . . do not agree with the decision that was made for me for Black Lung Benefits. I strongly agree that I am eligible. In the letter I got I was denied. Please take my case further more. Thank you for your cooperation.
Director's Exhibit 29 (emphasis added).
An informal conference was held on July 1, 1998. [4] In a Final Memorandum of Informal Conference dated July 17, 1998, the district director denied benefits. Director's Exhibit 29. A cover letter accompanying the Memorandum stated that:
Director's Exhibit 29.
There is no indication that claimant took any further action until he filed a second claim on September 19, 2000. [5] Director's Exhibit 1.
In his consideration of whether claimant's 2000 claim was timely filed, the administrative law judge relied upon the reasoning in Plesh v. Director, OWCP, 71 F.3d 103, 20 BLR 2-30 (3d Cir. 1995), [6] and found that claimant's November 7, 1997, letter “effectively triggered” the district director's obligation to forward the claim to the Office of Administrative Law Judges for a formal hearing. Decision and Order at 5. In making this determination, the administrative law judge held that the district director's subsequent processing of the claim (informal conference and subsequent decision) did not nullify claimant's premature hearing request. Id. The administrative law judge, therefore, found that claimant's 1997 claim remained open. Id.
Section 19(c) of the Longshore and Harbor Workers' Compensation Act states in pertinent part that the district director “shall make or cause to be made such investigation as he considers necessary in respect of the claim, and upon application of any interested party shall order a hearing thereon.” 33 U.S.C. §919(c), as incorporated into the Act by 30 U.S.C. §932(a).
The regulations provide that:
In any claim for which a formal hearing is requested or ordered, and with respect to which the [district director] has completed development and adjudication without having resolved all contested issues in the claim, the [district director] shall refer the claim to the Office of Administrative Law Judges for a hearing.
Section 725.450 further provides that:
Any party to a claim . . . shall have a right to a hearing concerning any contested issue of fact or law unresolved by the [district director]. There shall be no right to a hearing until the processing and adjudication of the claim by the [district director] has been completed.
20 C.F.R. §725.450 (2000).
Employer contends that the administrative law judge erred in relying upon Plesh, arguing that claimant's claim does not arise within the jurisdiction of the Third Circuit Court and that no other circuit court has adopted the reasoning in Plesh. We disagree. The fact that a case arises within a different circuit is not a sufficient reason for disregarding a published decision of another circuit court. See Shuff v. Cedar Coal Co., 967 F.2d 977, 980, 16 BLR 2-90 (4th Cir. 1992). Moreover, employer points to no other circuit court case law that contradicts or does not follow the reasoning set forth in Plesh. [7] Further, employer's attempts to distinguish the instant case from the fact situation in Plesh are unpersuasive.
We, therefore, hold that, under the facts of this case, the administrative law judge properly found that claimant filed an effective request for a hearing in connection with his 1997 claim and that claimant's request had not been granted. Consequently, we affirm the administrative law judge's determination that claimant's 1997 claim was still pending. [8] Because claimant's 1997 claim was still pending, the administrative law judge properly merged claimant's 2000 claim with his 1997 claim. [9] See 20 C.F.R. §725.309(d) (2000).
Relying upon Island Creek Coal Co. v. Holdman, 202 F.3d 873 22 BLR 2-25 (6th Cir. 2000), Lane Hollow Coal Co. v Director, OWCP [Lockhart], 137 F.3d 799, 21 BLR 2-302 (4th Cir. 1998), and Consolidation Coal Co. v. Borda, 171 F.3d 175, 21 BLR 2-545 (4th Cir. 1999), employer argues that if claimant's 1997 claim is viable, employer must be dismissed from liability. Employer contends that delays in the adjudication of claimant's 1997 claim deprived...
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