Shaff v. U.S. Steel Corp.
| Decision Date | 27 March 2012 |
| Docket Number | 11-0388 BLA-A,11-0410 BLA-A,BRB 11-0388 BLA,11-0410 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | SHERRY SHAFF Widow of EDWARD E. SHAFF Claimant-Petitioner Cross-Respondent v. U.S. STEEL CORPORATION and c/o ACORDIA EMPLOYERS SERVICE Employer/Carrier- Respondents Cross-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeals of the Decision and Order on Remand of Richard K Malamphy, Administrative Law Judge, United States Department of Labor.
Jonathan Wilderman (Wilderman & Linnet, P.C.), Denver Colorado, for claimant.
William J. Evans and Susan Baird Motschiedler (Parsons Behle & Latimer), Salt Lake City, Utah, for employer.
Before: SMITH, HALL, and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
SMITH, Administrative Appeals Judge
Claimant appeals, and employer/carrier (employer) cross-appeals, the Decision and Order on Remand (06-BLA-00051, 06-BLA-06101) of Administrative Law Judge Richard K. Malamphy denying modification on a miner's claim and denying benefits on a survivor's claim filed 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) (). [1] This case involves a miner's claim filed on March 29, 1989, and a survivor's claim filed on March 23, 2004, and is before the Board for the second time. [2]
In the prior Decision and Order, pursuant to claimant's appeal, the Board initially held that employer's petition for modification pursuant to 20 C.F.R. §725.310 (2000) [3]was timely filed. Shaff v. U.S. Steel Corp., BRB No. 09-0643 BLA, slip op. at 5 (May 28, 2010)(unpub.). The Board further held that the administrative law judge's finding of a mistake in a determination of fact in the miner's claim did not comport with the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a), by means of 33 U.S.C. §919(d) and 5 U.S.C. §554(c)(2), which requires that an administrative law judge set forth the rationale underlying his findings of fact and conclusions of law. Shaff, slip op. at 6. Specifically, the Board held that the administrative law judge failed to address all of the relevant evidence and did not explain how he resolved the conflicts in the evidence pursuant to 20 C.F.R. §718.202(a)(4). Id. Additionally, the Board held that the administrative law judge did not render specific findings as to whether reopening the award of benefits in the miner's claim would render justice under the Act. Shaff, slip op. at 8. Therefore, the Board vacated the administrative law judge's finding that the evidence failed to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4), as well as his finding that employer was entitled to modification based on a mistake in a determination of fact pursuant to 20 C.F.R. §725.310 (2000).
With respect to the survivor's claim, the Board rejected claimant's assertion that the administrative law judge erred in failing to apply the doctrine of collateral estoppel to find that the miner had pneumoconiosis, based on the pneumoconiosis finding in the miner's claim. The Board held that, because the issue of the existence of pneumoconiosis in the miner's claim had not yet been considered on modification and was thus subject to change, the application of collateral estoppel was premature. Shaff, slip op. at 9. With respect to the administrative law judge's finding that claimant failed to establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c), the Board held that the administrative law judge's credibility determinations regarding the conflicting medical opinions did not satisfy the requirements of the APA. Shaff, slip op. at 10. Thus, the Board vacated the administrative law judge's denial of benefits in the survivor's claim.
In summary, the Board instructed the administrative law judge, on remand, to make specific findings, in the miner's claim, as to whether employer's petition for modification should be granted based on a mistake in a determination of fact pursuant to 20 C.F.R. §725.310 (2000). Further, the Board instructed the administrative law judge to make a specific finding, if necessary, as to whether granting modification of the award of benefits in the miner's claim would render justice under the Act. With respect to the survivor's claim, the Board instructed the administrative law judge to reconsider whether the evidence established that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Shaff, slip op. at 10. Finally, the Board instructed the administrative law judge, on remand, to explain the bases for his credibility determinations, and his findings of fact and conclusions of law, in accordance with the APA. Id.
On remand, the administrative law judge determined that the finding of the existence of pneumoconiosis in the miner's claim was a mistake in a determination of fact. Decision and Order on Remand at 4. The administrative law judge also found, however, that modification of the miner's award of benefits would not render justice under the Act. Id. at 4. Thus, the administrative law judge denied employer's request for modification. In considering the survivor's claim, the administrative law judge initially noted that the Board had held that “collateral estoppel does not apply in this case” to preclude employer from relitigating the issue of the existence of pneumoconiosis. Decision and Order on Remand at 4. Without deciding whether claimant established the existence of pneumoconiosis, the administrative law judge found that the evidence did not establish that the miner's death was due to pneumoconiosis under 20 C.F.R. §718.205(c). Id. at 4. Accordingly, the administrative law judge denied benefits in the survivor's claim. Id. Finally, the administrative law judge stated that, because claimant was not found to be entitled to benefits, attorney's fees were not permitted.
On appeal, claimant challenges the administrative law judge's decisions in both claims. [4] With respect to the miner's claim, claimant argues that the administrative law judge erred in finding a mistake in a determination of fact regarding the existence of pneumoconiosis, but urges affirmance of the administrative law judge's denial of employer's request for modification of the award of benefits. Claimant further asserts that the administrative law judge erred in finding that an award of attorney's fees is precluded in the miner's claim. In the survivor's claim, claimant contends that the administrative law judge erred in his evaluation of the medical opinion evidence in finding that claimant failed to establish that the miner's death was due to pneumoconiosis. Employer responds, urging affirmance of the denial of attorney's fees in the miner's claim, and affirmance of the denial of survivor's benefits. Employer has also filed cross-appeals. With respect to the miner's claim, employer asserts that the administrative law judge erred in denying its request for modification of the award of benefits on the grounds that modification would not render justice under the Act. With respect to the survivor's claim, employer asserts that the administrative law judge erred in stating the basis for concluding that collateral estoppel does not apply, but otherwise urges affirmance of the denial of survivor's benefits. The Director, Office of Workers' Compensation Programs (the Director), has not filed a brief in either appeal or cross-appeal.
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. [5] 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).
I. The Miner's Claim A.
Mistake in a Determination of Fact
Under Section 22 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §922, as incorporated into the Act by 30 U.S.C. §932(a), the fact-finder may, on the ground of a change in conditions or because of a mistake in a determination of fact, reconsider the terms of an award or denial of benefits. See 20 C.F.R. §725.310 (2000). The intended purpose of modification based on a mistake in a determination of fact is to vest the fact-finder “with broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted.” O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971); see Old Ben Coal Co. v. Director, OWCP [Hilliard], 292 F.3d 533, 22 BLR 2-429 (7th Cir. 2002); Director, OWCP v. Drummond Coal Co. [Cornelius], 831 F.2d 240, 10 BLR 2-322 (11th Cir. 1987).
Claimant asserts that the administrative law judge, on remand, again failed to explain the basis for his credibility determinations or how he resolved the conflicts in the evidence as to the existence of pneumoconiosis in the miner's claim. We agree.
In reviewing, on remand, the medical opinions at 20 C.F.R §718.202(a)(4), the administrative law judge initially noted that “Dr. Rasmussen's reports were made in the early 1990s and the undersigned would agree with the decision[] of Judge Karst [awarding benefits] based on the evidence then of record.” [6] Decision and Order on Remand at 4. The administrative law judge further noted that the record contained the 2008 medical report and testimony of Dr. Monahan, the miner's treating physician, who opined that the miner had legal pneumoconiosis, [7]in the form of chronic obstructive pulmonary disease (COPD)...
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