Filed: Dec. 12, 1995
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 12-12-1995 Keating v. Dir., Office of Workers' Comp. Programs Precedential or Non-Precedential: Docket 94-3593 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Keating v. Dir., Office of Workers' Comp. Programs" (1995). 1995 Decisions. Paper 304. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/304 This decision is brought to you for fre
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 12-12-1995 Keating v. Dir., Office of Workers' Comp. Programs Precedential or Non-Precedential: Docket 94-3593 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Keating v. Dir., Office of Workers' Comp. Programs" (1995). 1995 Decisions. Paper 304. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/304 This decision is brought to you for free..
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Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
12-12-1995
Keating v. Dir., Office of Workers' Comp. Programs
Precedential or Non-Precedential:
Docket 94-3593
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Keating v. Dir., Office of Workers' Comp. Programs" (1995). 1995 Decisions. Paper 304.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/304
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-3593
MARTHA KEATING, Widow of John Keating,
Petitioner
V.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent
PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD
BRB Docket No. 92-1245
Argued July 27, 1995
Before: NYGAARD and McKEE, Circuit Judges and
FULLAM, District Judge*
(Opinion Filed December 12, 1995)
MAUREEN H. KRUEGER, ESQUIRE (Argued)
Suite 211
1653 The Fairway
Jenkintown, PA 19046
Attorney for Petitioner
PATRICIA M. NECE, ESQUIRE
EDWARD WALDMAN, ESQUIRE (Argued)
United States Department of Labor
Office of the Solicitor
200 Constitution Avenue, N.W.
Suite N-2605
Washington, DC 20210
Attorneys for Respondent
1
* Honorable John P. Fullam, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
NYGAARD, Circuit Judge
The claimant, Martha Keating, appeals from a Benefits Review
Board decision affirming an Administrative Law Judge's order
rejecting her petition for modification. Her claim for Black
Lung benefits as the surviving spouse of John Keating has a
shamefully long history. It has been before three different ALJs
and before the Board on three separate occasions. Although given
several chances to consider properly Mrs. Keating's claim for
survivor benefits, the ALJs and the Board repeatedly failed to do
so. Instead, they dismissed her persistence as merely shopping
for a "friendly factfinder." It is not apparent from the record
whether she was shopping for a friendly factfinder or just a fair
one. It is painfully obvious, however, that she found neither.
Today, we will end this travesty. Based on the uncontradicted
evidence conceded by the Director to be credible,0 we conclude
that the record establishes that Mrs. Keating is entitled to
survivor benefits. We will grant the petition for review,
0
The Director's Brief provides that:
We have no quarrel with Keating as to the credibility
of the lay evidence. We accept the facts asserted as
true.
2
reverse the decision of the Board, and remand the cause for the
limited purpose of awarding Mrs. Keating benefits from August of
1978.0
I.
Nearly seventeen years ago, in February 1979, Mrs. Keating
filed for survivor benefits under the Federal Black Lung Benefits
Act, 30 U.S.C. §§ 901-945, as the surviving widow of miner John
Keating, who died on July 19, 1978.
Benefits are provided under the Act for or on behalf of
miners who are totally disabled due to pneumoconiosis,
or who were totally disabled due to pneumoconiosis at
the time of death . . . .
20 C.F.R. § 718.204(a). The Department of Labor denied the claim
and she requested a formal hearing before an ALJ. ALJ Marcellino
(ALJ 1) held a hearing in December 1980, at which Mrs. Keating
offered lay witness testimony and her husband's death
certificate, but no medical evidence.0 ALJ 1 denied benefits in
April 1981.
ALJ 1 found that John Keating worked as a miner for various
periods from 1939 through 1953. He worked part-time after school
and on weekends in the "dog hole" mines from 1939 to 1942, for
0
Mrs. Keating requests benefits beginning with the month after
the miner's death, August 1978. Section 725.503(c), 20 C.F.R.,
provides:
Except as is provided in Part 727 of this subchapter,
in the case of a survivor of a miner who died due to or
while totally disabled by pneumoconiosis, benefits
shall be payable beginning with the month of the
miner's death, or January 1, 1974, whichever is later.
0
Lack of available medical evidence was explained, in part,
because a coroner, who was not a medical doctor, signed the death
certificate and because the two doctors who periodically treated
John Keating were both dead and their records not obtainable.
3
which ALJ 1 credited the deceased with one year of employment.
The Director conceded seven years of coal mine employment from
1946 to 1953. Hence, ALJ 1 credited the deceased with a total of
eight years as a miner and found that Mrs. Keating was not
entitled to any presumptions under the Act, because the deceased
had fewer than ten years of coal mine employment.
According to ALJ 1, "the death certificate conclusively
establishe[d] that the cause of death was acute cardiac and
respiratory failure, with anthracosilicosis contributing to
death." He stated that lack of evidence to show pneumoconiosis
was either: 1) a multiple cause of death not medically
distinguishable from the cause of death, or 2) related to or an
aggravating cause of death, prevented a finding that Keating died
from pneumoconiosis. Therefore, Mrs. Keating would have to prove
that, at the time of his death, Keating suffered total disability
as a result of pneumoconiosis from coal mine employment.
ALJ 1 then mistakenly decided that because Mrs. Keating was
not entitled to any presumptions she could not prove
pneumoconiosis solely by lay testimony, stating
[w]hile the lay testimony of a widow and persons with
knowledge of the miner's condition could in some cases
establish a presumption of pneumoconiosis, where the
miner has less than ten years of coal mine employment
this evidence is simply insufficient to establish the
existence of pneumoconiosis.
(Emphasis added). Incongruously, the ALJ found the death
certificate alone competent to conclusively establish the cause
of death, acute cardiac and respiratory failure with
anthracosilicosis with emphysema contributing to death, but not
4
competent to establish pneumoconiosis. ALJ 1 denied Mrs.
Keating's claim without considering the properly submitted lay
evidence.
Mrs. Keating appealed the Decision and Order of ALJ 1 to the
Board. Mrs. Keating argued that ALJ 1 erred by finding fewer
than ten years of coal mine employment and by not giving proper
weight to the lay testimony and death certificate. Almost three
years later, the Board affirmed the denial of benefits, affirmed
the finding of fewer than ten years of coal mine employment, and
stated that it could not say the ALJ unreasonably determined that
the lay evidence of record alone was insufficient to establish
either death or total disability from pneumoconiosis. ALJ 1,
however, did not determine that the lay evidence failed to
establish Mrs. Keating's claim. Instead, he simply decided that
lay evidence alone was insufficient if the miner had fewer than
ten years of coal mine employment.
In August 1985, Mrs. Keating filed a second claim for
benefits, which the Department of Labor treated as a request for
modification under 20 C.F.R. § 725.310, and denied. In her
request for modification, Mrs. Keating offered a newly discovered
Anthracite Miners Certificate as evidence that ALJ 1 incorrectly
credited her husband with fewer than ten years employment. Mrs.
Keating also argued that ALJ 1 mistakenly decided the ultimate
fact, her entitlement to benefits.
ALJ Tierney (ALJ 2) held a hearing two years later on
whether ALJ 1's decision should be modified. He denied the
modification request. In summary fashion, ALJ 2 stated that
5
modification would be granted only if Mrs. Keating proved a
mistake of fact, and added that failure to present all available
relevant evidence at the initial hearing does not constitute a
mistake of fact. ALJ 2 made a conclusory statement that the "new
evidence," the miner's certificate, was available at the time of
the initial hearing and because Mrs. Keating testified at that
hearing she had no basis to request modification. He flatly
refused to consider the significance of the miner's certificate
and Mrs. Keating's contention that ALJ 1's finding that she was
not entitled to benefits constituted a mistake of fact.
A year later the Board affirmed ALJ 2 on appeal, basically
reiterating the ALJ's decision. The Board acknowledged that ALJ
2 may have erred by failing to consider the effect of the miner's
certificate, but added that the new evidence, even if considered,
would not support a finding of ten years of coal mine employment.
It noted, however, that if fully credited, the miner's
certificate would support a finding of 9 years and 8 months of
coal mine employment. Although Mrs. Keating clearly presented
the issue, the Board did not consider whether ALJ 1 mistakenly
decided the ultimate fact. The Board operated under the
erroneous assumption that, even though her case was filed before
1982, without medical evidence she must show employment for at
least ten years.
On June 13, 1990, Mrs. Keating once again sought proper
consideration of her claim by filing a modification petition. ALJ
Brown (ALJ 3) denied it one and a half years later, in February
1992. ALJ 3 did not consider carefully Mrs. Keating's petition
6
and ignored the fact that no judge had weighed the lay testimony
on the deceased miner's condition. Instead, ALJ 3 chastised the
widow, stating the modification process "does not permit
continuous reweighing of testimony by Judge after Judge until a
friendly factfinder is found."
Mrs. Keating again appealed to the Board. The Director this
time agreed with Mrs. Keating that the administrative law judges
had not properly considered her claim or modification requests,
and filed a motion with the Board requesting remand to ALJ 3 for
proper consideration.0 In August 1994, the Board denied the
Director's motion and affirmed ALJ 3's decision.
The Board concluded that ALJ 3 found no mistake of fact and
denied benefits. It also opined that Mrs. Keating failed to
argue mistake of fact. This, however, is incorrect. ALJ 3
refused both to consider the evidence and to decide if there had
been a mistake of fact. In affirming, the Board stated that Mrs.
Keating's arguments (first, that the evidence of record
established her entitlement to benefits and second, that the ALJ
made a mistake of fact) amount instead to assignments of legal
error or mistake in law and are not proper grounds for
modification. Mrs. Keating now petitions for review.
0
The Director's Brief provides:
[W]e are not unmindful of the long tortured procedural
history of this case, which has already dragged on for
far too long. We also accept our share of the
responsibility for the delay, as we did not recognize
that Keating had yet to receive a proper evaluation of
her evidence until this case was before the Board for
the third time.
7
II.
First, we must determine whether the Board erred by
upholding ALJ 3's refusal to consider whether Mrs. Keating had
established a mistake of fact. It is important to note the
purpose behind the Act in order to fully appreciate both the
injustice to Mrs. Keating, and how the treatment of her case runs
counter to congressional goals. Section 901(a), 30 U.S.C.,
provides:
It is . . . the purpose of this subchapter . . . to
ensure that in the future adequate benefits are
provided to coal miners and their dependents in the
event of their death or total disability due to
pneumoconiosis.
The courts have repeatedly recognized that the remedial nature of
the statute requires a liberal construction of the Black Lung
entitlement program to ensure widespread benefits to miners and
their dependents. Kline v. Director, OWCP, 877 F.2d 1175, 1180
(3d Cir. 1989).
Under 20 C.F.R. § 718.202,0 in claims such as Mrs. Keating's
filed before January 1, 1982, the claimant can rely solely on lay
testimony. As we stated in Hillibush v. United States Dept. of
0
Section 718.202(c), 20 C.F.R., regulates a finding of
pneumoconiosis and provides:
A determination of the existence of pneumoconiosis
shall not be made . . . [in] a claim involving a
deceased miner filed on or after January 1, 1982,
solely based upon the affidavit(s) (or equivalent sworn
testimony) of the claimant and/or his or her dependents
who would be eligible for augmentation of the
claimant's benefits if the claim were approved.
See also, 20 C.F.R. §§ 718.204(c)(5) & 718.305(b).
8
Labor, Benefits Review Bd., 853 F.2d 197, 204 (3d Cir. 1988),
citing 30 U.S.C. § 923(b),
Where there is no medical or other relevant
evidence in the case of a deceased miner, such
affidavits . . . shall be considered to be sufficient
to establish that the miner was totally disabled due to
pneumoconiosis or that his or her death was due to
pneumoconiosis.
The provisions regulating the use of lay evidence in pre-
1982 cases address the difficulty of establishing an otherwise
valid claim because of the lack of medical evidence, resulting
from lost, destroyed, or incomplete doctor and hospital records
or other medical evidence. See Hillibush, 853 F.2d at 204. Mrs.
Keating faced this precise difficulty, and three ALJ's and the
Board on three occasions used it against her to deny her claim.
It is true that based on ALJ 1's finding of fewer than ten
years of coal mine employment, Mrs. Keating is not entitled to
the interim presumption of 20 C.F.R. § 727.203(a).0 Nonetheless,
ALJ 1 erred when he ruled that Mrs. Keating could not establish
her claim on lay evidence alone if her husband had worked fewer
than ten years in the coal mines.
On modification petitions, ALJ 2, ALJ 3, and the Board twice
on appeal, totally ignored Mrs. Keating's argument that ALJ 1
made a mistake of the ultimate fact -- that she was not entitled
to benefits. The ALJs and the Board incorrectly ruled that the
evidence could not be reconsidered.
Section 725.310, 20 C.F.R., provides in pertinent part:
0
Keating concedes that because she did not challenge the
calculation before the Board the third time, she waived argument
that she is entitled to the interim presumption based on ten
years of coal mine employment.
9
(a) Upon his or her own initiative, or upon the
request of any party on grounds of a change in
conditions or because of a mistake in a determination
of fact, the deputy commissioner may, at any time
before one year from the date of the last payment of
benefits, or at any time before one year after the
denial of a claim, reconsider the terms of an award or
denial of benefits.
(b) . . . Additional evidence may be submitted by any
party or requested by the deputy commissioner . . . .
20 C.F.R. § 725.310 (a) & (b).
The Director interprets the modification regulation as
allowing an ALJ to reconsider the evidence in determining whether
there was a mistake of fact, even the ultimate fact of
entitlement. This is consistent with the modification
regulation. Moreover, O'Keeffe v. AeroJet-General Shipyards,
Inc., 404 U.S. 254,
92 S. Ct. 405 (1971), establishes that we
should broadly construe the modification provision. In O'Keeffe,
the Court interpreted the language from the Longshoremen's and
Harbor Workers' Compensation Act, 33 U.S.C. § 922, which is
incorporated into the Black Lung Benefits Act by 30 U.S.C.
§932(a), and implemented by 20 C.F.R. § 725.310. It found that
on its face the modification provision permits a reopening of the
case with no limitation on particular factual errors. The plain
language allows the deputy commissioner "broad discretion to
correct mistakes of fact, whether demonstrated by wholly new
evidence, cumulative evidence, or merely further reflection on
the evidence initially
submitted." 404 U.S. at 256, 92 S. Ct. at
407.
In Jessee v. Director, OWCP, 5 F.3d 723, 725 (4th Cir.
1993), interpreting 20 C.F.R. § 718.310, the court stated
10
a claimant may simply allege that the ultimate
fact--disability due to pneumoconiosis--was mistakenly
decided, and the [ALJ] may, if he so chooses, modify
the final order on the claim. There is no need for a
smoking-gun factual error, changed conditions, or
startling new evidence.
Accord, Consolidation Coal Co. v. Worrell, 27 F.3d 227, 230 (6th
Cir. 1994).
We agree with the Director that the regulation empowers an
ALJ to make a de novo review of factual determinations on a
modification petition. As the Director recognizes,
[a]t a minimum, the [ALJ] must review all evidence of
record -- any new evidence submitted in support of
modification, as well as the evidence previously of
record -- and "further reflect" on whether any mistakes
[of] fact were made in the previous adjudication of the
case.
Mrs. Keating argues, and the Director agrees, that she was
entitled to have an ALJ properly determine her request for
modification. ALJ 3 refused to consider her arguments, and
contrary to O'Keeffe's instruction, protested that she was not
entitled to have the evidence "reconsidered" on petition for
modification. ALJ 3 erred by refusing to render de novo factual
findings based on the lay evidence, and the Board erred by
affirming on appeal.
III.
Mrs. Keating requests that instead of remanding for yet
another hearing, we simply direct an award of benefits to her on
the record. We have done so in similar cases in which the result
is foreordained, and will do so here. In Sulyma v. Director,
OWCP, 827 F.2d 922 (3d Cir. 1987), the issue was the medical
evidence's sufficiency to rebut the presumption of total
11
disability resulting from pneumoconiosis. We reversed the order
of the Board and remanded the cause for an award of benefits,
noting that case's protracted history. In Kline, a case that had
gone on for nineteen years, we likewise awarded benefits after
concluding that the record established the claimant's entitlement
to benefits.
We found remand unnecessary in Kowalchick v. Director, OWCP,
893 F.2d 615 (3d Cir. 1990), after we concluded that the evidence
could only support a finding that the claimant had established
the presumption of disability under 20 C.F.R. § 727.203(a)(1),
stating "this is a case where the record is so clear that under
the correct standard the result is
foreordained." 893 F.2d at 621
(internal quotations omitted). We found that "no purpose would
be served in remanding [the] case ... and we therefore direct[ed]
that benefits be awarded from the appropriate commencement date."
Id.at 624.
Recently, in Bethenergy Mines Inc. v. Director, OWCP, 39
F.3d 458 (3d Cir. 1994), the Board reversed an ALJ's denial of
benefits. Upholding the Board's decision, we commented:
While the Board could have remanded the matter, we
hardly can fault it for bringing these protracted
proceedings to a close. Indeed, we followed a similar
course in Sulyma v. Director, OWCP, 827 F.2d 922, 924
(3d Cir. 1987) . . . . [W]e would not remand the case.
Rather, "in consideration of the age of" the case, we
relied on our own view of the record and concluded that
the presumption had not been rebutted.
39 F.3d at 464.
We will follow the wise counsel of those cases. This case
has gone on far too long. Therefore, we will review the record
12
to determine if Mrs. Keating is entitled on this record to
survivor benefits.
IV.
Although the Director concedes the credibility of the
petitioner's witnesses, and the record shows no contrary
evidence, the Director nonetheless maintains that the lay
witnesses did not establish that John Keating at the time of his
death suffered total disability resulting from pneumoconiosis
from coal mine employment. The Director acknowledges what the
law provides: that lay witnesses alone in pre-1982 cases may be
sufficient to establish Mrs. Keating's claim, but suggests
inferences from the lay evidence other than total disability or
death from pneumoconiosis. Notably, however, he fails to
articulate just what those contrary inferences might be. Indeed,
we can find none.
Arguing against an outright award of benefits, the Director
characterizes the evidence as merely relating the miner's
symptoms and not establishing with specificity the physical
requirements of the miner's usual coal mine work. He questions
whether the evidence of record suffices to support the required
finding that the miner's condition prevented him from performing
his usual coal mine work.0 We respond simply by noting that
0
Section 718.204(b), 20 C.F.R., provides:
(b)Total disability defined . . . . [A] miner shall
be considered totally disabled if pneumoconiosis as
defined in section 718.201 prevents or prevented the
miner:
(1)From performing his or her usual coal mine work;
and
13
nothing other than total disability, however, can reasonably be
inferred from the evidence in this record.
The Director cites to cases from other Courts of Appeals in
which the testimony failed to prove a totally disabling
respiratory impairment. Those cases are inapposite. Each case
must be decided on its own facts, and those cases were not
decided on testimony as compelling as that Mrs. Keating offered.
The Director also argues that there is no evidence linking
the miner's respiratory impairment to his coal mine employment,
such as "that his cough was productive of black material." But,
of course, there is no check list of required testimony.
Obviously, the type of testimony considered sufficient would have
to be short of medical testimony, otherwise lay testimony alone
could never suffice.
Mrs. Keating can establish total disability resulting from
pneumoconiosis by her affidavit or equivalent sworn testimony
alone. Nonetheless, in addition to her sworn testimony, Mrs.
Keating submitted the sworn testimony and affidavits of
individuals familiar with the miner's condition, as provided for
by 20 C.F.R. § 718.305(b),0 and submitted the death certificate
indicating anthracosilicosis.0
(2)From engaging in gainful employment in the
immediate area of his or her residence requiring the
skills or abilities comparable to those of any
employment in a mine or mines in which he or she
previously engaged with some regularity over a
substantial period of time.
0
Section 718.305(b), 20 C.F.R., applies to pre-1982 cases and
provides:
14
This evidence establishes that at the time of his death, the
miner was not able to perform simple tasks, such as climbing
stairs, because of his difficulty breathing. Most of the
testimony involved personal observations of five individuals that
the deceased had extreme difficulty breathing and a significant
lack of energy. The evidence also documented his work in the
coal mines for almost ten years, his repeated exposure to black
coal dust, his medical treatment for his lungs during the last
five years of his life, his inability to work which he attributed
to his coal mine employment, and the presence of
anthracosilicosis. Beyond question, Mrs. Keating established a
record showing that the deceased suffered from pneumoconiosis
arising from coal mine employment as required under the Act.
We conclude that Mrs. Keating is entitled to benefits
because the Director concedes the lay evidence's credibility, and
there is no contrary evidence. At the time of John Keating's
death, he was totally disabled as a result of pneumoconiosis from
coal mine employment. In light of the liberal policies behind
the Act and the foregoing, Mrs. Keating is entitled to benefits.
V.
In the case of a deceased miner, where there is no
medical or other relevant evidence, affidavits of
persons having knowledge of the miner's condition shall
be considered to be sufficient to establish the
existence of a totally disabling respiratory or
pulmonary impairment for purposes of this section.
(Emphasis added).
0
The definition of pneumoconiosis includes anthracosilicosis. 20
C.F.R. §§ 718.201 & 727.202.
15
Accordingly, we will grant the petition for review, reverse
the Benefits Review Board and remand the cause for the limited
purpose of awarding benefits to Mrs. Keating from August 1978.
16
