Wyoming Fuel Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 94-9576

• Decision Date: 23 July 1996
• Docket Number: No. 94-9576,94-9576
• Citation: 90 F.3d 1502
• Parties: WYOMING FUEL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent. Nick J. Brandolino, Real Party in Interest.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1502

90 F.3d 1502

WYOMING FUEL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent Nick J. Brandolino, Real Party in Interest.

No. 94-9576.

United States Court of Appeals Tenth Circuit.

July 23, 1996.

Ronald E. Gilbertson of Kilcullen, Wilson & Kilcullen, Washington, DC, for Petitioner.

Jeffrey Goldberg, U.S. Department of Labor, Washington, DC (Thomas S. Williamson, Jr., Donald S. Shire and Patricia M. Nece, U.S. Department of Labor, with him on the brief) for Respondent.

Sisto J. Mazza, Trinidad, CO, for Real Party in Interest Nick J. Brandolino.

Before PORFILIO, BRORBY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Claimant Nick J. Brandolino brought a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (the "Act"), against his former employer, Petitioner Wyoming Fuel Co., in 1985. Brandolino had brought a prior claim in 1982, but was denied benefits because he failed to demonstrate any of the elements necessary to establish an entitlement to benefits. In considering Brandolino's 1985 claim, the Administrative Law Judge concluded that Brandolino had proven a material change in his conditions from the earlier denial, thereby permitting him to bring the 1985 claim (the "duplicate claim"). The ALJ also concluded that Brandolino was entitled to benefits from Wyoming Fuel because he had demonstrated that he had pneumoconiosis ("black lung disease") and was totally disabled due to pneumoconiosis. The Benefits Review Board of the U.S. Department of Labor (the "Board") affirmed the ALJ. Wyoming Fuel now appeals.

On appeal, Wyoming Fuel raises four issues:

I. Whether the regulation permitting duplicate claims under the Black Lung Benefits Act violates the statute of limitations in the Longshore and Harbor Workers' Compensation Act;

II. Whether the Act's requirement that a miner bring a claim within three years from the date of a medical determination of total disability due to pneumoconiosis barred Brandolino from bringing his duplicate claim;

III. Whether the ALJ and Board applied an invalid standard in deciding whether Brandolino demonstrated a material change in his conditions from the time his first claim was denied; and

IV. Whether the ALJ's conclusions that Brandolino is entitled to benefits are supported by substantial evidence.

For the reasons stated below, we disagree with Wyoming Fuel on the first and second issues, and therefore AFFIRM the Board's conclusions that the duplicate claim regulation as applied here does not violate any statute of limitations. However, we agree with Wyoming Fuel that the Board applied an invalid standard to decide whether Brandolino demonstrated a material change in conditions. We therefore REVERSE and REMAND for the ALJ to consider: (1) whether further evidence indicates that Brandolino's conditions have materially changed since his first claim was denied under the standard we describe below; and (2) if Brandolino's claims have materially changed, whether Brandolino meets the elements establishing an entitlement to benefits under the Act.

Background

Brandolino, filed his first claim for benefits under the Black Lung Benefits Act on July 6, 1982, at the age of 57, and after 39 years of working in mines. ¹ A Department of Labor claims examiner reviewed medical evidence submitted by Brandolino and concluded that the evidence did not show any of the three elements necessary to receive benefits under the Act: (1) the existence of the disease pneumoconiosis; (2) that pneumoconiosis was caused at least in part by coal mine work; and (3) the claimant is total disabled due to pneumoconiosis. See 20 C.F.R. § 718.201-.204. Brandolino did not appeal the determination, but rather continued to work in mines.

After working in the mines for another two years, Brandolino filed a duplicate claim on October 1, 1985, over three years after he filed his first claim. 20 C.F.R. § 725.309 ("Section 309") permits a duplicate claim when the claimant demonstrates a "material change in conditions." ² Following a July 22, 1992, hearing at which several medical experts testified, ALJ Samuel J. Smith concluded that Brandolino had demonstrated a material change under Section 309 and reversed the decision of a deputy commissioner. The ALJ also found Brandolino entitled to benefits under the Act by concluding that the evidence proved: (1) Brandolino suffered from pneumoconiosis; (2) Brandolino's pneumoconiosis was caused at least in part by his coal mine work; and (3) Brandolino was totally disabled due to pneumoconiosis. The Board affirmed the ALJ on all grounds, and rejected Wyoming Fuel's argument that Brandolino's duplicate claim was untimely because it was not brought within three years from the date a medical determination of total disability due to pneumoconiosis was communicated to him. See 30 U.S.C. § 932(f); 20 C.F.R. § 725.308(a). Wyoming Fuel timely filed this appeal against the Director of the Office of Workers' Compensation Programs for the U.S. Department of Labor (the "Director") and Brandolino.

Standard of Review

When reviewing the Board's decision, our role is to "scrutinize the [Board's decision] for errors of law and for adherence to the substantial evidence standard governing the Board's review of the administrative law judge's factual determinations." Maddaleni v. Director, OWCP, 961 F.2d 1524, 1525 (10th Cir.1992) (quotation omitted). The Board cannot uphold the ALJ's findings and conclusions unless the findings are supported by substantial evidence and the conclusions are in accordance with the law. Davis v. Director, OWCP, 936 F.2d 1111, 1114 (10th Cir.1991). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Hansen v. Director, OWCP, 984 F.2d 364, 368 (10th Cir.1993) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). "In determining whether substantial evidence exists, the court cannot reweigh the evidence, but may only inquire into the existence of evidence to support the trier of fact." Id. (quotation omitted).

When we review the Board's interpretation of either the Black Lung Benefits Act, or the black lung regulations promulgated by the Secretary of Labor, we must keep in mind that the Board is only a " 'quasi-judicial body which is empowered to resolve legal issues, but not to engage in overall administration through rule-making.' " Bridger Coal Co./Pac. Minerals, Inc. v. Director, OWCP, 927 F.2d 1150, 1153 (10th Cir.1991) (quoting William Bros., Inc. v. Pate, 833 F.2d 261, 264 (11th Cir.1987)). Therefore, neither the Board's interpretation of the Act, nor its interpretation of the regulations, is entitled to any special deference by the courts. See Lukman v. Director, OWCP, 896 F.2d 1248, 1250-51 (10th Cir.1990). Instead, "[w]e exercise plenary review in determining whether the Board's interpretation of [a black lung regulation] is consistent with Congress's intent as expressed in the Act." Bridger, 927 F.2d at 1153. However, the Secretary of Labor's interpretation of black lung regulations is entitled to "substantial deference." Lukman, 896 F.2d at 1251.

I. Section 309 does not violate the Longshore Act's

requirement that claimants must challenge a claim

within one year.

Wyoming Fuel argues that allowing Brandolino to bring a duplicate claim pursuant to Section 309 violates the statute of limitations at Section 22 of the Longshore Act, which provides that a claimant must challenge a rejection of a claim within one year. See 33 U.S.C. § 922. ³ However, 30 U.S.C. § 932(a)--the provision of the Black Lung Benefits Act that incorporates the Longshore Act--adopts the Longshore Act's provisions "except as otherwise provided in this sub section or by regulations of the Secretary...." 30 U.S.C. § 932(a). ⁴ Therefore, Section 309, a regulation of the Secretary, properly preempts incorporation of 33 U.S.C. § 922's one-year limitation period. See Lukman v. Director, OWCP, 896 F.2d 1248, 1253-54 (10th Cir.1990) (recognizing that purpose of Section 309 was to permit new claims to be filed when more than a year has passed since the first claim was denied).

II. Section 309 does not violate the Act's requirement that

miners bring claims within three years of a

medical determination of total

disability. ⁵

Wyoming Fuel argues that permitting Brandolino to bring a duplicate claim pursuant to Section 309 also violates the statutes of limitations at 30 U.S.C. § 932(f) and 20 C.F.R. § 725.308(a) ("Section 308(a)"), which require that a miner bring a claim within three years from the date a medical determination of total disability due to pneumoconiosis is communicated to the miner. ⁶ Wyoming Fuel argues that results of a blood gas test performed in July, 1982, by Dr. Michael T. Saiz in connection with Brandolino's first claim, as well as a diagnosis of chronic bronchitis by Dr. Saiz, provided Brandolino with a medical determination of total disability due to pneumoconiosis. Therefore, under Wyoming Fuel's theory, Section 308(a) bars Brandolino's Oct. 1, 1985 claim.

In affirming the ALJ's decision, the Board stated that it consistently has held that the three-year limitations period does not apply to duplicate claims. The Board reasons that because pneumoconiosis is a progressive disease, the need for providing notice to an employer of a claim within a certain time period is diminished following the filing of a prior claim. See Faulk v. Peabody Coal Co., BRB No. 88-217 BLA, 1990 WL 284143, at * 2 (Ben.Rev.Bd. May 22, 1990). This rule "satisfies the purpose of the statute of limitations by ensuring that [an] employer is provided notice of the current claim and of the potential for liability for future claims, in view of the progressive nature of pneumoconiosis." Id. Wyoming Fuel argues that this reading is inconsistent with the plain language of the statute...