Robinson v. Director, Office of Workers' Compensation Programs
| Decision Date | 30 August 2001 |
| Docket Number | BRB 00-1044 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | SHIRLEY ROBINSON Widow of JAMES ROBINSON Claimant-Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Donald W. Mosser, Administrative Law Judge, United States Department of Labor.
James M. Robinson (Robinson, Rice & Levy, L.C.), Huntington, West Virginia, for claimant.
Timothy S. Williams (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: HALL, Chief Administrative Appeals Judge, SMITH Administrative Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
DECISION and ORDER.
Claimant the miner's widow, appeals the Decision and Order (99-BLA-0871) of Administrative Law Judge Donald W. Mosser (the administrative law judge) ordering an offset of benefits awarded the deceased miner 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] The administrative law judge ordered that the benefits awarded the deceased miner under the Act be offset by 20% of the second injury life award (SILA) granted the miner by the State of West Virginia. Claimant contends that there should be no offset or overpayment charged in this case because the Workers' Compensation Commissioner for the State of West Virginia failed to determine the specific contributory effect of the miner's pneumoconiosis in awarding the SILA. The Director, Office of Workers' Compensation Programs (the Director), responds, urging affirmance of the decision below.
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and conclusions of law are supported by substantial evidence, are rational, and are consistent with applicable law, they are binding upon this Board and may not be disturbed. 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).
The undisputed pertinent facts of this case are as follows: The miner filed the instant claim on December 9, 1972. Director's Exhibit 1. By Decision and Order dated April 23, 1981, Administrative Law Judge Virginia Mae Brown awarded benefits to commence June 1, 1978. Director's Exhibit 5. The record shows that the miner had received, from the State of West Virginia, a number of awards for permanent partial disability due to various injuries he suffered. Claimant's Exhibits 1-5. The record also shows that the State of West Virginia awarded the miner workers' compensation benefits for pneumoconiosis; 15% in 1973 and an additional 5% in 1976 for a total of 20% permanent partial disability due to pneumoconiosis, in connection with two state claims that the miner had filed. Director's Exhibit 6; Claimant's Exhibit 6.
On October 1, 1982, the State of West Virginia awarded the miner a SILA on the ground that he was totally and permanently disabled by the combined effect of all of his injuries and pneumoconiosis. Director's Exhibit 26. Specifically, the commissioner for the Workmen's Compensation Fund indicated that the miner "suffers from pre-existing permanent disability attributable to multiple prior injuries and occupational pneumoconiosis, and through the combined effect of these injuries and occupational pneumoconiosis is now permanently and totally disabled..." Id. By letter dated December 16, 1982, the Director of the State of West Virginia Coal Workers' Pneumoconiosis Fund calculated that 23.53% of the miner's SILA was the portion by which his benefits under the Act should be offset. Director's Exhibit 23 at 2. The Director of the State of West Virginia Coal Workers' Pneumoconiosis Fund later advised the district director that the state fund's policy for apportioning offset due to the SILA had been re-evaluated, namely, that the former calculation of 20% of 85% disability (or 23.53%) should be recalculated as 20% of 100% disability (or 20%). The district director sought clarification of this re-calculation. Director's Exhibit 25. In response, the Director of the State of West Virginia Workers' Compensation Coal-Workers' Pneumoconiosis Fund informed the district director that "at the maximum 20% of Mr. Robinson's life award is due to pneumoconiosis" and thus, the appropriate offset of the miner's award of benefits under the Act would be calculated based on 20% of the SILA (or 20% of 100% disability); that the previous policy of calculating disability based on disability awards totaling at least 85%, was not correct, and was started and stopped with this miner's state claim. Director's Exhibit 26.
The miner challenged whether any offset was due and further challenged the method by which the offset was calculated. Director's Exhibit 39. On March 4, 1999, counsel for the miner requested a formal hearing on the offset issue. Director's Exhibit 29. The miner died five days later on March 9, 1999. Director's Exhibit 30. Claimant filed a Survivor's Notification of the Beneficiary's Death on April 6, 1999. Director's Exhibit 31. On April 7, 1999, the district director determined that claimant was entitled to receive benefits on her own behalf as of March 9, 1999 at the monthly rate of $459.50, and awarded these benefits, with the Black Lung Disability Trust Fund liable for the payment thereof. Id. On April 14, 1999, pursuant to claimant's request, the district director transferred the case to the Office of Administrative Law Judges for resolution of the issue of whether the benefits awarded under the Act should be offset due to the SILA which was awarded to the miner by the State of West Virginia. Director's Exhibit 32. The parties thereafter agreed to a determination on the record. The administrative law judge's ensuing Decision and Order, dated June 20, 2000, is the subject of the instant appeal.
The administrative law judge found that an offset of the miner's award of benefits under the Act was required because a portion of the SILA which was awarded to the miner by the State of West Virginia was attributable to the miner's pneumoconiosis. The administrative law judge found that 20% of the SILA was attributable to the miner's pneumoconiosis, and ordered that the miner's award of benefits under the Act be offset by 20% of the SILA.
Claimant contends that because the SILA does not state the degree to which the deceased miner's pneumoconiosis contributed to his total and permanent disability, and since it was the miner's back injury and hearing loss, and not his pneumoconiosis, which actually caused him to receive the SILA, there should be no offset or overpayment[2]charged to claimant. Claimant asserts as follows:
[N]othing in the record developed before the [State of West Virginia] Workers' Compensation Commissioner permits a, determination on the amount, if any, that occupational, pneumoconiosis contributed to the [miner's award for] permanent, total disability. Instead, the evidence reveals that the [miner] received a 20% permanent partial disability award while he was, working. [The miner] did not apply for a permanent total, disability award until after he had sustained his 1978 back, injury. This back injury that he sustained was one of three back, injuries based on Dr. Mattill's opinion that accounted for at, least 20% of his impairment.
... Given the remedial purposes of the Federal Black Lung Act, if, there are any doubts concerning the contributory role, if any, occupational pneumoconiosis played in a claimant's permanent total, disability, then those doubts must be resolved in claimant's, favor..
If [the miner] had ceased working due to his occupational, pneumoconiosis, then perhaps the Department of Labor's position, would be better supported. See Director, OWCP v. Hamm, 113 F.3d 23, [21 BLR 2-131] ([4th Cir.] 1997). But the, record in this case, when construed in the claimant's favor, clearly reveals that occupational pneumoconiosis is
not the reason [the miner] stopped working. [The, miner's] back injury was the last injury that he sustained and was, the proverbial straw that broke the camel's back here. Thus, this, case is clearly distinguishable from Hamm. Claimant's Brief at 25(emphasis provided). Claimant thus asserts that without proof as to what contribution the miner's pneumoconiosis made to his total disability, the administrative law judge simply assumed that because the miner received permanent partial disability awards for his pneumoconiosis totaling 20%, then 20% of the SILA for permanent total disability must be attributable to the miner's pneumoconiosis. Claimant's Brief at 29. The Director contends that substantial evidence supports the administrative law judge's finding that the miner's award of benefits under the Act is subject to offset and that the amount of the offset is an amount representing 20% of the SILA.
The Act provides that benefit payments shall be reduced for state benefits received "on account of the disability of such miner due to pneumoconiosis." 30 U.S.C. §922(b). The Act further provides for the reduction of benefits under the Act by the amount of state benefits received "because of death or disability due to pneumoconiosis." 30 U.S.C. §932(g). The regulations at 20 C.F.R. §725.533(a) and (a)(1) provide for the reduction of federal benefits "on account of" state benefits received "because of death or partial or total disability due to...
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