Reed v. L & M Coal Co.

Decision Date16 February 2022
Docket NumberBRB 20-0571 BLA,20-0572 BLA
CourtCourt of Appeals of Black Lung Complaints
PartiesFREDA F. REED (o/b/o and Widow of CECIL LUKE REED) Claimant-Petitioner v. L & M COAL COMPANY and WEST VIRGINIA COAL WORKERS' PNEUMOCONIOSIS FUND Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

FREDA F. REED (o/b/o and Widow of CECIL LUKE REED) Claimant-Petitioner
v.

L & M COAL COMPANY and WEST VIRGINIA COAL WORKERS' PNEUMOCONIOSIS FUND Employer/Carrier-Respondents

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

BRB Nos. 20-0571 BLA, 20-0572 BLA

Court of Appeals of Black Lung

February 16, 2022


UNPUBLISHED OPINION

Appeals of the Decision and Order Denying Modification and Survivor's Benefits of Francine L. Applewhite, Administrative Law Judge, United States Department of Labor.

Freda F. Reed, Princeton, West Virginia.

Ashley M. Harman and Lucinda L. Fluharty (Jackson Kelly PLLC), Morgantown, West Virginia, for Employer and its Carrier.

Before: BUZZARD, ROLFE, and GRESH, Administrative Appeals Judges.

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DECISION AND ORDER

PER CURIAM:

Claimant[1] appeals, without the assistance of counsel, Administrative Law Judge (ALJ) Francine L. Applewhite's Decision and Order Denying Modification and Survivor's Benefits (2015-BLA-05259, 2017-BLA-05735) rendered on claims filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).[2] This case involves Claimant's request for modification of the denial of a miner's subsequent claim filed on June 29, 2010, [3] and a survivor's claim filed on August 11, 2014. For the following reasons, we vacate the denial of benefits in both claims, and remand them to the ALJ for further consideration.

In an August 6, 2015 Decision and Order Denying Benefits in the miner's claim, ALJ Theresa C. Timlin found the new evidence did not establish the Miner had complicated pneumoconiosis and therefore found Claimant could not invoke the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. 30 U.S.C. §921(c)(3); 20 C.F.R. §718.304. She further found the Miner was totally disabled but Claimant could not invoke the rebuttable presumption of total disability due to

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pneumoconiosis at Section 411(c)(4) of the Act because the Miner had only twelve and one-half years of coal mine employment.[4] 30 U.S.C. §921(c)(4) (2018). She additionally found the new evidence did not establish the Miner had pneumoconiosis or that his total disability was due to pneumoconiosis under 20 C.F.R. Part 718. Finding Claimant failed to establish a change in an applicable condition of entitlement, ALJ Timlin denied benefits. 20 C.F.R. §725.309(c).

Claimant timely requested modification of the decision denying the miner's claim. 20 C.F.R. §725.310; Miner's Claim Director's Exhibit 62. Meanwhile, the district director denied Claimant's survivor's claim and forwarded both claims to the Office of Administrative Law Judges. Survivor's Claim Director's Exhibits 29, 36. ALJ William T. Barto held a consolidated hearing on both claims on June 26, 2018. On January 17, 2019, ALJ Francine L. Applewhite (the ALJ) issued a Notice of Reassignment, notifying the parties that the cases were reassigned to her and she would issue a Decision and Order based on the existing record.

In the miner's claim, the ALJ found that because Claimant did not challenge ALJ Timlin's finding of less than fifteen years of coal mine employment, she could not invoke the Section 411(c)(4) presumption that the Miner was totally disabled due to pneumoconiosis. The ALJ also found no mistake of fact in ALJ Timlin's determination that the evidence developed since the denial of the Miner's prior claim did not establish he had complicated pneumoconiosis. She further found the additional evidence submitted on modification also did not establish he had the disease and, therefore, Claimant could not invoke the Section 411(c)(3) irrebuttable presumption of total disability due to pneumoconiosis. Additionally, the ALJ found no mistake of fact in ALJ Timlin's determination that the evidence did not establish the Miner had pneumoconiosis under 20 C.F.R. Part 718, and the additional evidence submitted on modification also did not establish pneumoconiosis. Finding no change in an applicable condition of entitlement, the ALJ denied benefits.

In the survivor's claim, the ALJ found that because she denied the miner's claim, Claimant was not automatically entitled to survivor's benefits under Section 422(l) of the

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Act.[5] 30 U.S.C. §932(l) (2018). The ALJ again determined Claimant did not challenge ALJ Timlin's finding the Miner had less than fifteen years of coal mine employment, d id not establish the Miner had complicated pneumoconiosis, and therefore was not entitled to the Section 411(c)(4) or Section 411(c)(3) presumptions that the Miner's death was due to pneumoconiosis. Moreover, as the record contained no evidence that the Miner's death was due to pneumoconiosis, she found Claimant could not establish entitlement to survivor's benefits at 20 C.F.R. Part 718. The ALJ therefore denied benefits in the survivor's claim.

On appeal, Claimant generally challenges the ALJ's denial of benefits. Employer responds in support of the denial. The Director, Office of Workers' Compensation Programs, has not filed a response brief.

In an appeal a claimant files without the assistance of counsel, the considers whether substantial evidence supports the Decision and Order below. Stark v. Director, OWCP, 9 BLR 1-36, 1-37 (1986). We must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[6] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).

Length of Coal Mine Employment-Both Claims

To invoke the Section 411(c)(4) presumption, Claimant must establish the Miner worked at least fifteen years in underground coal mines, or in "substantially similar" surface coal mine employment. 20 C.F.R. §718.305(b)(1)(i). Claimant bears the burden to establish the number of years the Miner worked in coal mine employment. Kephart v. Director, OWCP, 8 BLR 1-185, 1-186 (1985); Hunt v. Director, OWCP, 7 BLR 1-709, 1-710-11 (1985). The Board will uphold an ALJ's determination if it is based on a reasonable method of calculation that is supported by substantial evidence. Muncy v. Elkay Mining Co., 25 BLR 1-21, 1-27 (2011).

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Contrary to the ALJ's finding, Claimant was not required to specifically allege that ALJ Timlin erred in calculating the Miner's length of coal mine employment to obtain review of that issue on modification. The ALJ may grant modification based on either a change in conditions or a mistake in a determination of fact. 20 C.F.R. §725.310(a). When a request for modification is filed, "any mistake of fact may be corrected, including the ultimate issue of benefits eligibility." Betty B Coal Co. v. Director, OWCP [Stanley], 194 F.3d 491, 497 (4th Cir. 1999); see Youghiogheny & Ohio Coal Co. v. Milliken, 200 F.3d 942, 954 (6th Cir. 1999) ("If a claimant merely alleges that the ultimate fact (disability d ue to pneumoconiosis) was wrongly decided, the [ALJ] may, if [s]he chooses, accept this contention and modify the final order accordingly."); Nataloni v. Director, OWCP, 17 BLR 1-82, 1-84 (1993). Claimant's general allegation of a mistake in fact sufficed to invoke the ALJ's "broad discretion to correct mistakes of fact," including on the issue of the Miner's coal mine employment, "whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence originally submitted." O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971); see Jessee v. Director, OWCP, 5 F.3d 723, 725 (4th Cir. 1993) ("There is no need for a smoking-gun factual error . . . .").

Further, the ALJ was incorrect as a factual matter in stating that Claimant did not challenge ALJ Timlin's finding of less than fifteen years of coal mine employment. At the hearing on modification, Claimant alleged the Miner had at least eighteen years of underground coal mine employment. Hearing Transcript at 23-24; Claimant's Closing Arguments at 2.[7] Because the ALJ did not determine the length of the Miner's coal mine employment, the Board has no relevant findings to review. Muncy, 25 BLR at 1-27. Therefore, we vacate her determination that the Miner had less than fifteen years of coal mine employment and that Claimant did not invoke the Section 411(c)(4) presumption in either the miner's or the survivor's claims. We therefore vacate the denial of benefits in both claims. Because we vacate the denial of benefits in the miner's claim, we vacate the ALJ's finding that Claimant is not derivatively entitled to survivor's benefits under Section 422(l) of the Act. 30 U.S.C. §932(l) (2018); Decision and Order Denying Modification at 24.

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On remand, the ALJ must determine whether ALJ Timlin made a mistake of fact in determining the Miner had less than fifteen years of coal mine employment in his claim, and must determine the length of his coal mine employment in the survivor's claim. In doing so, the ALJ must employ a reasonable method of calculation. She must specifically address whether Claimant can establish fifteen years of qualifying coal mine employment, which is necessary to invoke the Section 411(c)(4) presumption that the Miner was totally disabled due to pneumoconiosis or, if reached in the survivor's claim, that he died due to pneumoconiosis. If Claimant establishes the Miner had at least fifteen years of qualifying coal mine employment, Claimant has invoked the Section 411(c)(4) presumption in the miner's claim.[8] 20 C.F.R. §718.305. If Claimant invokes the presumption in the miner's claim, the burden shifts to Employer to establish the Miner had neither legal nor clinical pneumoconiosis, or "no part of [his] respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] §718.201." 20 C.F.R. §718.305(d)(1)(i), (ii).

If benefits are awarded in the miner's claim, the ALJ must...

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