Director, Office of Workers' Compensation Programs v. Oglebay Norton Co.

877 F.2d 1300, 1989 WL 67047

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 8, 1989
• Docket: 88-3512
• Status: Published

Opinions

BAILEY BROWN, Senior Circuit Judge.

The Director appeals the dismissal by the Administrative Law Judge (AU) and the subsequent affirmance of this dismissal by the Benefits Review Board of Oglebay Norton Co. (Oglebay) as the responsible operator in this black lung widows’ benefits case. We believe that the AU improperly concluded (1) that Oglebay should be dismissed as the responsible operator and (2) that liability should be transferred to the Black Lung Disability Trust Fund. Accordingly, we reverse the AU’s finding.

FACTS

Carl Goddard filed an application for black lung disability benefits on July 20, 1973. Along with his application, Goddard filed a history of coal mine employment in which he stated that the most recent coal company he had worked for was the Youghiogheny and Ohio Coal Company (Y & O), from October 18, 1972 to July 31, 1973. Goddard also stated that he had been employed by Oglebay from February 21, 1955 to August 23, 1972.

After initial denials on September 12, 1973, June 3, 1974, February 24, 1976, and August 17, 1977, the Office of Workers’ Compensation Programs (OWCP) issued a finding of eligibility on July 20, 1979 naming Y & O as the responsible operator and ordered benefits payable from January 1, 1974. On August 9, 1979, Y & O contested this finding of entitlement and disputed its identification as the responsible operator. 20 C.F.R. § 725.493(a)(1) defines a responsible operator as “the operator or other employer with which the miner had the most recent periods of cumulative employment of not less than 1 year_” (emphasis added). Goddard had been employed by Y & O for only ten months and the parties stipulated to this fact at an informal conference on March 27, 1980. Nevertheless, the OWCP forwarded Goddard’s claim to the Office of Administrative Law Judges on July 8, 1980 with Y & O named as the responsible operator.

On April 30, 1981, Carl Goddard died and on May 30, 1981, his widow, Enid, filed a separate claim for benefits as a surviving spouse.

A hearing on the claim was scheduled for October 5,1981. On September 12,1981, Y & 0 filed a motion for summary judgment on the ground that by law it could not be the responsible operator since it had employed Goddard for less than one year. The Director also moved to remand the claim to the OWCP to identify the proper responsible operator. On September 25, 1981, the AU ordered remand of the claim to the deputy commissioner to identify the responsible operator.

On May 17, 1983, Oglebay was informed that it had been identified as the responsible operator. Oglebay was also informed of Y & O’s prior involvement in the claim. Oglebay contested liability and moved that it be dismissed as the responsible operator and that liability be transferred to the Black Lung Disability Trust Fund. Ogle-bay also produced the evidence it had developed in defense of Goddard’s claim. On March 23, 1983, the OWCP denied Ogle-bay’s motion to transfer liability to the Trust Fund and ruled that the additional evidence produced by Oglebay did not alter the initial finding of disability.

The OWCP transferred the claim to the Office of Administrative Law Judges on July 26, 1983. Oglebay again filed a motion to be dismissed as the responsible operator and to transfer liability to the Trust Fund, citing Crabtree v. Bethlehem Steel Corp., 7 BLR 1-354 (1984), as authority. Enid Goddard joined in this motion. On December 26, 1985, the AU dismissed Oglebay as the responsible operator pursuant to Crabtree. Noting the inefficiency of the OWCP in processing Goddard’s claim, the AU transferred liability for Goddard’s disability payments to the Black Lung Disability Trust Fund. This decision was affirmed by the Benefits Review Board on March 19, 1988, on the authority of its Crabtree decision. The Director now appeals to this court.

ANALYSIS

The Director contends that the deputy commissioner’s identification of Oglebay as the responsible operator was proper under 20 C.F.R. § 725.412(a). Additionally, the Director argues that the AU improperly transferred liability to the Black Lung Disability Trust Fund.

Applicability of 20 C.F.R. § 725.412(a)¹

The regulations contained at 20 C.F. R. § 725.412 govern the identification of a responsible operator by the deputy commissioner. 20 C.F.R. § 725.412(a) provides, in part:

At any time during the processing of a claim under this part, after sufficient evidence has been made available to the deputy commissioner, the deputy commissioner may identify a coal miner operator ... which may be liable for the payment of the claim in accordance with the criteria contained in Subpart F of this part.² Such identification shall be made as soon after the filing of the claim as the evidence obtained permits....

In support of the decisions below, Ogle-bay suggests a narrow construction of § 725.412(a), stressing the language that “identification shall be made as soon after the filing of the claim as the evidence obtained permits.” This language, Oglebay asserts, mandates identification of a responsible operator within a reasonable time after the information necessary to make an identification becomes available to the deputy commissioner. Since identification was not made a reasonable time after such information was made available in this case, Oglebay contends that the deputy commissioner’s identification of Oglebay as the responsible operator was invalid.

We decline to follow Oglebay’s construction of § 725.412(a) for two reasons. First, Oglebay’s emphasis on the second sentence of subsection (a) appears to be at odds with the language of the first sentence which permits identification of a responsible operator “[a]t any time during the processing of a claim under this part.” ³ See American Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 1538, 71 L.Ed.2d 748 (1982) (“Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible.”); Payne v. Panama Canal Co., 607 F.2d 155, 164 (5th Cir.1979) (“Every statute must be viewed in its entirety so that each part has a sensible and intelligent effect harmonious with the whole.”). We believe that a harmonious construction of 20 C.F.R. § 725.412(a) allows the identification of Oglebay as the responsible operator. Although this identification was made nearly ten years after Goddard’s claim was filed, the claim had not, at that time, been finally adjudicated. Therefore, it was still being processed when the identification of Ogle-bay was made and § 725.412(a) was not violated.

Additionally, we believe it is inappropriate for this court to read a time limitation into 20 C.F.R. § 725.412(a), as Oglebay suggests. Such a reading would inject a degree of uncertainty into future responsible operator identifications, requiring the AU to determine whether identification in each case was made within a reasonable time of filing and “to deal with each [identification] on an ad hoc basis in which multifarious, indeed unlimited, factors would need to be considered and weighed.” Conn v. United States, 867 F.2d 916, 921 (6th Cir.1989). If the need for a time limitation becomes great, it is properly within the authority of the Department of Labor to amend the regulation to remedy such a deficiency. 30 U.S.C. § 932(a).

Validity of Crabtree v. Bethlehem Steel Corp.

Both the AU and the Board in this case rested their decisions ordering the dismissal of Oglebay as the responsible operator on the Board’s prior decision in Crabtree v. Bethlehem Steel Corp., 7 BLR 1-354 (1984). The Board in Crabtree dismissed Bethlehem as the responsible operator, finding that Crabtree had been an independent contractor. The Board then determined that a further remand to determine a responsible operator was not warranted.

The Department of Labor is not entitled to a second opportunity to identify another putative responsible operator.

... The regulations contain no express provision requiring the Department to identify all putative responsible operators, and resolve any dispute as to which one is properly responsible for benefits, in one proceeding. We hold, however, that due process, as well as the efficient administration of the Act, compels this result.

Remand for reconsideration of the operator issue would be tantamount to re-litigating the claim_ [Such piecemeal litigation obviously is not compatible with the efficient administration of the Act and expeditious processing of claims.

Id. at 1-356 to 1-357 (footnotes omitted). The Crabtree Board then held that, “in the absence of any other potentially liable operator”, the Black Lung Disability Trust Fund⁴ must assume liability for the payment of benefits to the claimant. Id.

In this case, the AU, applying Crabtree, dismissed Oglebay as the responsible operator and transferred liability to the Trust Fund. “The error which set in motion the fragmentation and intolerable delay of this litigation was so patent and so unnecessary that it is only just that the Department of Labor [i.e., the Trust Fund] bear responsibility for it.” Joint Appendix at A-19.

We are not obligated to follow the Benefits Review Board’s decision in Crabtree. The Board is not a policymaking agency and its interpretations of the Black Lung Benefits Act are not entitled to “any special deference from the courts.” Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980); Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278, 1283 (6th Cir.1987). “Rather, the Director’s statutory interpretation is the one entitled to judicial deference, since he is the one charged with administration of the BLBA.” Saginaw Mining, 818 F.2d at 1283.

We decline to follow the Board’s ruling in Crabtree that the deputy commissioner must identify all responsible operators in one proceeding and that when such identification procedures are not efficiently administered, liability should be directed to the Black Lung Disability Trust Fund. The assignment of liability to the Trust Fund in this case and in Crabtree appears to be contrary to Congress’ intent that the fund be utilized when no responsible operator is identified. 26 U.S.C. § 9501(d), addressing the assignment of liability to the Black Lung Disability Trust Fund, provides in pertinent part:

Amounts in the Black Lung Disability Trust Fund shall be available, as provided by the appropriation Acts, for—

(1) the payment of benefits under section 422 of the Black Lung Benefits Act in any case in which the Secretary of Labor determines that—

(B) there is no operator who is liable for the payment of such benefits....

See also Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th Cir.1987) (“Congress intended to ‘ensure that individual coal operators rather than the trust fund bear the liability for claims arising out of such operators’ mines to the maximum extent feasible.’ S.Rep.No. 209, 95th Cong., 1st Sess. 9 (1977), reprinted in House Comm, on Educ. and Labor, 96th Cong., Black Lung Benefits Reform Act and Black Lung Benefits Revenue Act of 1977, 612 (Comm.Print 1979).”).

In this case, since there was an affirmative identification of Oglebay as the responsible operator, the AU’s transfer of liability to the Trust Fund was improper. There is nothing in the applicable statutes or regulations to indicate that Oglebay’s identification as responsible operator should be disregarded merely because it was inefficiently reached. Moreover, it should be noted that none of the parties to this case would suffer substantial prejudice by a further remand of this action with Oglebay properly identified as the responsible operator. After the initial determination of Goddard’s eligibility for disability benefits, interim benefits were paid to him by the Black Lung Disability Trust Fund. 20 C.F.R. §§ 725.420 and 725.522. After his death, Goddard’s widow was also granted interim benefits. Additionally, Oglebay would not be substantially prejudiced by remand. Oglebay has access to the medical evidence developed by Y & O both before and after Goddard’s death and can adequately defend against the claim on remand. In fact, the ALT noted that Y & O had “generate[d] considerable evidence in its defense, including a complete physical examination.” Joint Appendix at A-14. In addition, it appears that Oglebay also had developed evidence on the issue of whether Goddard in fact had black lung disease. Therefore, we are not presented with a case in which it appears that Oglebay will be substantially prejudiced in defending this matter on its merits. Indeed, neither the AU nor the Benefits Review Board, in refusing to hold Oglebay to be the responsible operator and in transferring this liability to the Trust Fund, relied on such prejudice to Oglebay.

We therefore hold that the deputy commissioner’s identification of Oglebay as the responsible operator in this case was within his authority under 20 C.F.R. § 725.412(a) and that the AU’s dismissal of Oglebay and the transfer of liability to the Black Lung Disability Trust Fund were in error.

In making this decision, we are certainly not placing our imprimatur on the way in which this matter was handled in the Director’s office. On the contrary, we agree with Oglebay, as the Director at least implicitly concedes, that the failure of the Director’s office earlier to identify the responsible operator represents a clear case of bureaucratic snafu. We simply hold that, under these circumstances and under the applicable statute and regulations, the Director was not prohibited from naming Oglebay as the responsible operator.

Accordingly, we reverse the decision of the AU and remand for further proceedings consistent with this opinion.

1 . The ALJ’s decision in this case did not directly address 20 C.F.R. § 725.412(a). His decision and the Board’s decision below relied on Crab-tree which addressed § 725.412(d). 20 C.F.R. § 725.412(d) does not apply here because this claim did not involve "a dispute between two or more operators as to which may be liable for the payment of benefits to the claimant_” 20 C.F.R. § 725.412(d).

2 . Subpart F, 20 C.F.R. §§ 725.490-725.497, "define[s] the term ‘operator,’ prescribed the manner in which the identity of an operator which may be liable for the payment of benefits — referred to as a ‘responsible operator’ — will be determined, and briefly described the obligations of operators to secure the payment of benefits.’’ 20 C.F.R. § 725.490(b).

3 . Oglebay contends that this language pertains only to the processing of a claim under subpart D, which, it argues, applies only to the administration of a claim by the deputy commissioner. If § 725.412(a) were meant to address only sub-part D, however, that subpart would have been specifically identified, instead of the reference to "this part”. The part containing § 725.412 is Part 725 which governs the processing of claims under Part C of Title IV of the Federal Mining Safety and Health Act. Furthermore, subpart D does not pertain only to the processing of claims by the deputy commissioner. Subpart D addresses the adjudication of claims by adjudication officers which include administrative law judges as well as the deputy commissioner. 20 C.F.R. § 725.350.

4 . The Black Lung Disability Trust Fund was established by the Black Lung Benefits Revenue Act of 1977 "to provide a more effective means of transferring the responsibility for the payment of benefits from the Federal government to the coal industry_” 20 C.F.R. § 725.490(a). The fund is financed by an excise tax on the sale of coal. 26 U.S.C. § 9501; Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th Cir.1987). The fund is authorized to borrow from the United States Treasury "as may from time to time be necessary”. 26 U.S.C. § 9501(c)(1). The Director notes that currently the Trust Fund is $2.9 billion in debt to the Treasury. Brief for Director, Office of Workers’ Compensation Programs at 14.