Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2007

Vesta Mining Co v. Director OWCP
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4071




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Recommended Citation
"Vesta Mining Co v. Director OWCP" (2007). 2007 Decisions. Paper 84.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/84


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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                       No. 06-4071


                                VESTA MINING COMPANY,
                                           Petitioner

                                              v.

          DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS;
                            CHARLES T. WAUGH,
                                   Respondents




                      On Appeal from the Benefits Review Board,
                             U.S. Department of Labor
                             (BRB No. 05-0830 BLA)




                                 Argued December 6, 2007

         BEFORE: MCKEE, CHAGARES and HARDIMAN, Circuit Judges.

                                (Filed: December 12, 2007)

James M. Poerio, Esq. (Argued)
Poerio, Walter & Mason
1119 Penn Avenue
Suite 303
Pittsburgh, PA 15222

      Attorney for Petitioner

Barry H. Joyner, Esq. (Argued)
Patricia M. Nece, Esq.
United States Department of Labor
Office of the Solicitor
200 Constitution Avenue, N.W.
Washington, D.C. 20210

       Attorneys for Respondent Director, Office of Workers’
       Compensation Programs

Cheryl C. Cowen, Esq. (Argued)
769 Lippencott Road
Waynesburg, PA 15370

       Attorney for Respondent Charles T. Waugh




                                        OPINION




McKEE, Circuit Judge.

       Vesta Mining Corporation petitions for review of the July 18, 2006, Decision and

Order of the Benefits Review Board of the U.S. Department of Labor (the “Order”). In

that Order, the Board affirmed an Administrative Law Judge’s determination that Charles

Waugh was entitled to benefits pursuant to the Black Lung Benefits Act, (the “Act”), 30

U.S.C. §§ 901-44, as well as the ALJ’s determination that Vesta is the “responsible

operator” under the Act for purposes of paying Waugh black lung benefits. For the

reasons that follow, we will grant Vesta’s petition for review insofar as the Order

concludes that Vesta is the “responsible operator” under that Act, but we will dismiss the

petition insofar as it challenges the OWCP’s determination that Waugh is eligible for

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black lung benefits.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not recite the procedural or factual background. Counsel for OWCP concedes that

the determination that Vesta is the “responsible operator” under the Act was based on

evidence that was improperly submitted in violation of applicable Department of Labor

regulations, see 20 C.F.R. § 725.408(a)(3) & (b)(2), and should therefore not have been

considered as part of the record. Accordingly, the Board’s affirmance of the ALJ’s ruling

that Vesta is the responsible operator is not supported by the record, and Vesta’s petition

for review of the Order must be granted.

       Vesta represented at argument that, in the event we conclude that it is not the

responsible operator, it will no longer challenge Waugh’s eligibility for benefits. Thus,

insofar as the petition for review challenges the award of benefits to Waugh, the petition

is dismissed, and Waugh’s entitlement to benefits under the Act is affirmed.

       Counsel for the Director also concedes that, if we vacate the determination that

Vesta is the responsible operator, Waugh will be entitled to receive benefits from the

Black Lung Disability Trust Fund. 26 U.S.C. § 9501; 20 C.F.R. § 725.407(d).*

       Accordingly, we will remand this matter to the Board for entry of an order

designating the Trust Fund as the responsible payor of Waugh’s benefits under the Act.



   *
    Although Waugh has been receiving payments from the Trust Fund, counsel for
Waugh has represented that Waugh has not been able to use the proceeds of those checks
because of this challenge to his entitlement to black lung benefits.

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