W.S. v. Office of Workers' Compensation Programs, BRB 08-0335 BLA
| Decision Date | 19 December 2008 |
| Docket Number | BRB 08-0335 BLA |
| Parties | W.S. Claimant-Petitioner v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order Regarding Overpayment of Benefits of Adele Higgins Odegard, Administrative Law Judge, United States Department of Labor.
Leonard Stayton, Inez, Kentucky, for claimant.
Sarah M. Hurley (Gregory F. Jacob, Solicitor of Labor; Rae Ellen Frank James, Acting Associate Solicitor; 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, McGRANERY and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order Regarding Overpayment of Benefits (07-BLO-0006) of Administrative Law judge Adele Higgins Odegard denying claimant a waiver of recovery of overpayment 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). This case involves a miner’s claim filed on February 5 2001. Director’s Exhibit 1. Claimant was awarded federal black lung benefits by the district director in a Proposed Decision and Order dated April 24, 2002. Director’s Exhibit 2. It was later determined that on August 7, 2001, claimant had been awarded benefits for a second injury life award (SILA) under the West Virginia workers’ compensation law for permanent total disability. Director’s Exhibits 11, 13, 14. The district director determined that ten percent of the award was due to occupational pneumoconiosis and that the award had been issued prior to the time that claimant had begun receiving federal benefits. Director’s Exhibit 16. The district director reduced claimant’s monthly federal award by the amount of the state award attributable to pneumoconiosis, and calculated that claimant was liable for an overpayment in the amount of $12, 416.00. [1] Director’s Exhibits 16, 17. Claimant reimbursed the Black Lung Disability Trust Fund for this amount, but requested a hearing, contesting the finding that the state award was attributable, in part, to pneumoconiosis and that offset was appropriate.
The administrative law judge found that ten percent of claimant’s state award was based on claimant’s pneumoconiosis, and concluded that an offset of $194.00 per month, constituting ten percent of claimant’s state award of $1, 940.01 per month, was correct pursuant to 20 C.F.R. §725.535(b). [2] The administrative law judge further found that claimant was “at fault” [3]in creating an overpayment in the amount of $12, 416.00 because he failed to promptly notify the district director of his state award, and thus, claimant was not eligible for waiver of recovery of the overpayment pursuant to 20 C.F.R. §725.542.
On appeal, claimant contends that the administrative law judge erred in offsetting his federal black lung benefits. Claimant argues that the West Virginia benefits were awarded for claimant’s other injuries, and that no part of the award was made for any disability caused by pneumoconiosis. The Director, Office of Workers’ Compensation Programs (the Director), has filed a response, contending that the administrative law judge’s findings are reasonable, and that claimant’s federal award was properly offset by the correct amount.
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).
Claimant acknowledges that he received awards totaling ten percent for state occupational pneumoconiosis claims in 1982 and 1985, but contends that when he subsequently reopened his claim, he did not go to a physician for his occupational lung disease, but rather, was awarded a one hundred percent occupational disability for other injuries. Claimant’s Brief at 6-7. While the administrative law judge noted that the effective date of the state award was April 17, 1998, the date claimant obtained a fully favorable decision from the Social Security Administration (SSA) based on multiple impairments including “lung and heart disease, ” Claimant’s Exhibit 1, claimant asserts that the SSA award letter did not indicate that any part of the award was for an occupational lung disease. Further, claimant contends that since the 2002 federal black lung award was based upon x-ray evidence of complicated pneumoconiosis rather than upon a functional impairment, any breathing impairment present at the time of the 1998 SSA decision was not due to pneumoconiosis. Claimant’s Brief at 8-9. Claimant’s arguments are without merit.
In finding that the district director had correctly offset claimant’s federal benefits by ten percent of the state award, the administrative law judge determined that the 2001 West Virginia decision specifically noted that claimant’s permanent partial disability awards were based in part on his pneumoconiosis, and found that claimant could not return to work due, in part, to his “compensable injuries.” Director’s Exhibit 14; Decision and Order at 6. The administrative law judge noted that the state decision referenced claimant’s SSA decision, which cited claimant’s lung disease among the justifications for its favorable determination. Decision and Order at 6-7; Director’s Exhibit 14. The administrative law judge reasonably concluded that the 2001 state award for “compensable injuries” must be read to include occupational pneumoconiosis because the decision did not exclude claimant’s pneumoconiosis from its discussion of his injuries in finding claimant eligible for permanent total disability [4]and indeed...
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