Helen Mining Co. v. Director, Office of Workers' Compensation Programs

924 F.2d 1269

• Court: Court of Appeals for the Third Circuit
• Decided: January 28, 1991
• Docket: No. 89-3418
• Status: Published

Opinions

Argued Dec. 1, 1989

Before BECKER, and STAPLETON, Circuit Judges, and KELLY, District Judge.

*

Reargued Oct. 9, 1990

Before HIGGINBOTHAM, Chief Judge, and SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD and ALITO, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Helen Mining Company and its insurer, Old Republic Insurance Company, petition this court for review of a decision and order of the Benefits Review Board which affirmed an administrative law judge’s finding that Helen is liable for black lung benefits granted its former employee John Burnsworth. Helen and the Director, Office of Workers’ Compensation Programs, agree that Burnsworth was entitled to the black lung benefits so that the question now presented is whether the cost of the benefits is to be borne by Helen or by the Black Lung Disability Trust Fund (the “Fund”). The answer to the question depends on whether Helen can effect a transfer of liability for Burnsworth’s benefits from it to the Fund by asserting “good cause” for Burnsworth’s failure to request review of an earlier denied claim for benefits. Accordingly, we revisit the problem we considered in Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d 600 (3d Cir.1989), in which we held that under the Black Lung Benefits Act a request for review of denied benefits must come from the miner, not the mine operator.

I. THE STATUTORY AND FACTUAL BACKGROUND

The statutory background we confront could hardly be more complicated. In 1969, Congress promulgated the Federal Coal Mine Health and Safety Act, Pub.L. No. 91-173, 83 Stat. 792 (1969) (the “1969 Act”). In Title IV of the 1969 Act (in 1978, entitled the “Black Lung Benefits Act,” Pub.L. No. 95-239, § 16, 92 Stat. 105 (1978)), finding that there were a significant number of coal miners seriously affected by pneumo-coniosis — i.e., “black lung” disease — , Congress provided for temporary benefits for the survivors of miners who had died from, and for those miners totally disabled by, this disease. Pub.L. No. 91-173, §§ 401-426, 83 Stat. 792-798 (codified, as amended, at 30 U.S.C. §§ 901-945). The 1969 Act anticipated a shifting responsibility for the administration of claims for these black lung benefits: Part B of the 1969 Act provided that claims filed on or before December 31, 1972, were to be processed by the Social Security Administration under the Department of Health, Education, and Welfare ¹ Part C of the 1969 Act provided that thereafter, i.e., “[o]n and after January 1, 1973,” all claims for black lung benefits were to be relegated to the Department of Labor. Id.

This temporal division of claims, between “Part B” and “Part C,” also governed liability for the benefits: Part B claim benefits were to be paid from the federal fisc; Part C benefits were to be paid pursuant to state workers’ compensation statutes found by Labor to provide adequate black lung disability coverage, or, if the state programs were not approved, by the responsible mine operators or their successors (or by the federal government if such operators could not be found). Pub.L. No. 91-173, §§ 411(a), 422(a)-(d), 83 Stat. 793, 796 (codified at 30 U.S.C. § 921(a), 932(a)-(d) (1970)). As a practical matter, however, identifiable responsible mine operators were charged with all the Part C claim benefits granted to their employees as Labor did not approve any state workers’ compensation statute for black lung disability benefit purposes. See 20 C.F.R. § 722.152(b) (1990). The black lung benefit program under Part C was slated to end completely on December 30, 1976. Pub.L. No. 91-173, § 422(e)(3), 83 Stat. 796, 30 U.S.C. § 932(e)(3) (1970).²

The Black Lung Benefits Act of 1972, Pub.L. No. 92-303, 86 Stat. 150 (1972) (codified at 30 U.S.C. §§ 901 et seq. (Supp. II 1973)) (the “1972 Act”), amended and substantially liberalized the 1969 Act. In particular, the 1972 Act, inter alia, made it easier to prove entitlement to benefits, expanded coverage under Part B to June 30, 1973,³ and continued Part C in existence to December 30, 1981.

Burnsworth, a mine face foreman with Helen, first filed a claim for black lung benefits on January 15, 1973. This claim, a Part B claim by temporal definition, was reviewed by Social Security and was denied on September 12, 1973. On August 21, 1975, Burnsworth filed another claim with Social Security but, as it was a Part C claim, it was sent to Labor where it languished without decision.⁴ On April 5, 1976, Burnsworth filed a third claim, and, shortly thereafter at the age of 70, retired from work in the mines. Labor administratively denied this last claim on March 24, 1977.

On March 1, 1978, Congress passed the Black Lung Benefits Reform Act of 1977, Pub.L. No. 95-239, 92 Stat. 95 (1978) (codified at 30 U.S.C. §§ 901 et seq.) (the “Reform Act”). Under the Reform Act, the standards for proving disability due to black lung were further substantially relaxed, and provision was made for indefinite continuation of Part C. The Reform Act also instructed Social Security and Labor to review all pending and previously denied claims on the basis of the new, liberalized standards. Labor was automatically to review Part C claims that had been filed with it and denied. The Secretary of Health and Human Services was directed to notify the claimants who had filed denied Part B claims with Social Security of their right to review by either Social Security or Labor. If a claimant elected Social Security review, the claim would be evaluated on the extant record; but if the claimant elected Labor review, the claimant could supplement the record. If granted on review, Part B claims were converted to Part C claims for the purposes of benefit liability. Regardless of whether Social Security or Labor made the review, Part B claims were to be reopened only “upon the request of the claimant_” Pub.L. No. 95-239, § 15 (adding new § 435(a)(1) to the 1969 Act) (codified at 30 U.S.C. § 945(a)(1) (Supp. II 1979)) (emphasis added).

A companion to the Reform Act, the Black Lung Revenue Act of 1977, Pub.L.' No. 95-227, 92 Stat. 11 (1978) (codified at 26 U.S.C. § 4121 et seq.) (the “Revenue Act”), created the Black Lung Disability Trust Fund (the “Fund”). The Revenue Act provided that the Fund, financed by an excise tax on each ton of coal mined, would bear the administrative costs of the black lung benefits program, cover the federal government’s existing Part C liability (for benefits attributable to mine operators who could not be found), and assume responsibility for paying black lung benefits where a miner’s last employment in the industry ceased before January 1, 1970, thus shifting to the Fund responsibility for Part C claims made by miners who had stopped working in the coal industry before the promulgation of the 1969 Act. However, since mine operators remained liable for Part C claims made by miners whose employment in the industry continued after 1969, and because of the automatic conversion of granted Part B claims into Part C claims for benefits purposes, mine operators became liable for all benefits granted to post-1969 miners under the Reform Act’s liberalized standards.

After passage of the Reform Act, Burns-worth received a letter from Social Security, and, almost immediately thereafter, another from Labor. The four-page letter from Social Security explained the changes in the law and attached a card for electing Social Security or Labor review. The Social Security letter informed Burnsworth,

If you wish your claim to be reviewed under the new law, you must request it.... You have up to six months from the date shown on the election card to request review unless you have a good reason for not doing so. [Emphasis in original.]

The Labor letter informed Burnsworth,

All claims filed with the Department of Labor that have not been approved for black lung benefits will automatically be reviewed under the new law.

Since you previously filed a claim with the Department, you do not have to file a new claim. We will automatically review your claim and contact you if addi\tional information is needed in order to decide your case. Until we contact you, there i5~mothing that you need to do about your claim. We will appreciate your continued patience during this review process.

[Emphasis in original.]

In light of these seemingly contradictory communications, Burnsworth did nothing. “I just thought,” he testified, “well, it’s just like everything else and I just laid [the card] aside.” “I took for granted that everything was under control [and] in order and there was no need of me bothering anyone at the time.”

On October 26, 1979, Labor informed Burnsworth that his benefits had been approved to be retroactive to the August 21, 1975, filing of his second Part C claim. Labor began paying Burnsworth’s benefits, and notified Helen of its potential liability, which Helen timely controverted. Pursuant to Helen’s contest, an administrative hearing was scheduled, but before it was held Helen withdrew its contest of Burns-worth’s eligibility for benefits. Labor, however, continued to pay Burnsworth’s benefits, apparently believing that Helen would eventually be liable for them.

Meanwhile, the liberalized standards of entitlement under the Reform Act began to wreak havoc in the coal industry. As the percentage of claims granted soared, the mine operators found themselves saddled with a massive, retroactive, unanticipated liability for Part C claims which their insurers refused to cover. See Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W.Va.L.Rev. 677, 693-94 (1983). Congress addressed this problem in the Black Lung Benefits Amendments of 1981, Pub.L. No. 97-119, 95 Stat. 1643 (1981) (codified at 30 U.S.C. § 901 et seq.) (the “1981 Act”). The 1981 Act provided that mine operators were not liable for benefits on account of total disability due to pneu-moconiosis

(2) which was the subject of a claim denied before March 1, 1978, and which is or has been approved in accordance with the provisions of section 945 of this title.

Pub.L. No. 97-119, § 205(a)(1), 95 Stat. 1645, 30 U.S.C. § 932(c) (1982) (emphasis added).

Thus, mine operators were relieved of liability for benefits granted under the new, liberalized standards of the Reform Act where those benefits had already been the subject of a “claim denied” on or earlier than February 28, 1978; the liability for these benefits, instead, was to be transferred to the Fund, the assets of which were supplemented by a further hike in the excise tax on coal.

The 1981 Act further provided

that the term “claim denied” means a claim—

(1) denied by [Social Security]; or

(2) in which (A) the claimant was notified by [Labor] of an administrative or informal denial more than one year prior to [March 1, 1978] and did not, within 1 year from the date of notification of such denial, request a hearing, present additional evidence or indicate an intention to present additional evidence, or (B) the claim was denied under the law in effect prior to [March 1, 1978] following a formal hearing or administrative or judicial review proceeding.

Pub.L. No. 97-119, § 205(b), 95 Stat. 1645, 30 U.S.C. § 902(i) (1982).

None of these transfer provisions, however, relieved Helen from liability for Burnsworth’s benefits: subsection 2(B) did not transfer liability to the Fund as Burns-worth’s second Part C claim was not originally denied following a formal proceeding; subsection 2(A) did not transfer liability, for although Burnsworth’s second Part C claim was originally denied administratively, the denial was on March 24, 1977, and thus not “more than one year prior to March 1, 1978,” see 30 U.S.C. § 902(i); and subsection (1) did not transfer liability as Burnsworth’s Part B claim, though denied by Social Security, had not been subsequently granted. His Part B claim could not have been granted as Burnsworth never requested that claim to be reopened and reviewed.

II. HELEN’S CLAIM

Nonetheless, after passage of the 1981 Act Helen, relying on regulations which Social Security and Labor had promulgated after the passage of the Reform Act in 1978 to implement the review process, contended it was entitled to have its liability for benefits transferred to the Fund. The regulations deal with situations such as Burnsworth’s, where, prior to the Reform Act’s passage, a claimant had had Part B and Part C claims denied. The Social Security regulation provides:

If the claimant does not respond to notification of his or her right to review by [Social Security] within 6 months of the notice (see § 410.704(c)[5] unless the period is enlarged for good cause shown, the Office of Workers’ Compensation Programs shall proceed under [Labor’s] regulations at 20 C.F.R. Part 727 to review the claim originally filed with [Labor].

20 C.F.R. § 410.705(c) (1990) (Emphasis added.)

Labor’s regulation provides that where a claimant had had both a Part B and a Part C claim denied, but

d[id] not respond to notification of his or her right to review by [Social Security] within 6 months of such notice (see § 727.104) unless the period is enlarged for good cause shown, the Secretary of Labor shall proceed under this Part to complete processing of the claim originally filed with [Labor].

20 C.F.R. § 727.103(c) (1990) (Emphasis added.)⁶ Helen argued to Labor, and again contends to us, that, under these regulations, it should be allowed to show that Burnsworth had “good cause” for not requesting review of his Part B claim within 6 months of notification of his right to seek such review. Helen believed that if Burnsworth had good cause, and if his claim filed with Social Security was therefore reopened, reviewed, and granted, its liability for Burnsworth’s benefits from the second claim filed with Labor would be obviated and the liability for benefits from the claim filed with Social Security transferred to the Fund under § 205(b)(1) of the 1981 Act. See 30 U.S.C. § 902(i)(l) (1982 & 1988).⁷ Helen’s position, however, was rejected by an administrative law judge notwithstanding his conclusion that Burns-worth had good cause in not seeking the Part B review, because under administrative precedent the Part B claim was merged into the Part C claim, which was not transferable. This decision and order was affirmed by the Board of Review. Helen then brought the petition for review now before us.

III. DISCUSSION

The foregoing is, then, the statutory, regulatory, factual and procedural background that we consider in deciding this matter. We are satisfied that while there can be no doubt that the evolution of the black lung benefits program presents a complicated picture, the proper resolution of this case ultimately is clear. Helen, of course, acknowledges that a “plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Further, it does not deny that in 1978 the mine operators were essentially legal bystanders to the Reform Act’s provisions by which miners were given the right to have their denied claims reviewed. Yet it maintains that it has subsequently become entitled to take advantage of these provisions and the regulations implementing them. Helen claims that after passage of the 1981 Act’s transfer provisions it acquired a very real monetary interest in having Burnsworth’s Part B claim reopened and reviewed, and that it therefore has standing to have the claim reopened by asserting “good cause” for Burnsworth’s failure to timely request review.

While we do not agree with this formulation, we agree that Helen has standing. The administrative law judge and the Benefits Review Board respectively determined that liability for Burnsworth’s benefits would not transfer to the Fund and that Helen would have to pay those benefits. Thus, Helen was “aggrieved” by the Board’s determination, see 33 U.S.C. § 921(c), incorporated by reference into 30 U.S.C. § 932(a), and has suffered a direct economic injury from the administrative determinations. It therefore has a personal stake in this case and was warranted in invoking our jurisdiction and in seeking a remedy for itself. See Warth v. Seldin, 422 U.S. at 499-500, 95 S.Ct. at 2205. Accordingly, Helen has standing to argue that it may obtain review of the Part B claim by showing “good cause” for Burnsworth’s failure to timely request review.

However, the fact that Helen has standing does not mean it is entitled to relief. We are satisfied that Congress did not intend that mine operators could take advantage of the review provision of the Reform Act for Part B claims. The plain language of the Reform Act provides that Part B claims are to be reopened only “upon the request of the claimant....” 30 U.S.C. § 945(a)(1) (emphasis added). Significantly, the original version of the bill that became the Reform Act provided that Part B claims, like Part C claims, were to be reopened automatically. H.R. 4544, 95th Cong., 1st Sess. (1977), reprinted in H.R.Rep. No. 151, 95th Cong., 1st Sess. (1977). The requirement that “the claimant ” request review for Part B claims was inserted into the final version of the bill. See H.R.Conf.Rep. No. 864, 95th Cong., 1st Sess. 20-21, reprinted in 1978 U.S.Code Cong. & Admin.News 237, 313-15. Clearly, then, “the claimant” alone was given the right and responsibility for requesting review of denied Part B claims. Indeed, inasmuch as the transfer provisions did not exist when the Reform Act was enacted, Congress could hardly have provided otherwise. See 30 U.S.C. § 945(a)(1). See also 124 Cong.Ree. 2,331 (1978) (statement of Sen. Randolph) (“All denied part B claimants will be given the option of having their claims reviewed ... by [Social Security] or ... [Labor] ...”) (emphasis added); id. 2,336 (statement of Sen. Byrd) (“The legislation also assures that miners previously denied black lung benefit payments will be permitted to have their claims reconsidered to determine if they are eligible”) (emphasis added); id. 3,426 (statement of Rep. Perkins) {“Every ... claimant is absolutely entitled to a review ... ”) (emphasis added).

The regulations promulgated by Social Security and Labor under the review provisions of the Reform Act support this view. The right to seek reopening and review of Part B claims belongs to the claimant — it is “his or her right to review_” 20 C.F.R. § 410.705(c), § 727.103(c) (emphasis added). Thus, the claimant decides whether to exercise that right and where, as here, the claimant does not mail the election card back to Social Security within 6 months, “the claimant ” is deemed to have waived review of the Part B claim. 20 C.F.R. § 410.704(d), § 727.104(b) (emphasis added). Inasmuch as these regulations were promulgated about 6 months after passage of the Reform Act, see 43 Fed.Reg. 34,781 (1978); id. 36,819, they are presumed to be a correct reflection of Congressional intent. See National Muffler Dealers Ass’n v. United States, 440 U.S. 472, 477, 99 S.Ct. 1304, 1307, 59 L.Ed.2d 519 (1979). Therefore, unless we rewrite the law and the regulations, Helen cannot prevail, and that we will not do.

Furthermore, we reject Helen’s argument that the administrative law judge’s finding that Helen had “good cause” in not asking for the Part B review somehow satisfies the statutory requirement of a request for review by the claimant. The very regulations upon which Helen relies provide that “good cause” is good cause for an untimely request for review; it is not good cause for a failure to make a request for review. See 20 C.F.R. § 410.705(c), § 727.103(c) (“unless the period is enlarged for good cause shown ... ”) (emphasis added). Burnsworth has never requested review of his Part B claim and it is that request which under the Reform Act is a prerequisite that Congress explicitly imposed for the reopening of a Part B claim.

Finally, far from agreeing with Helen that the 1981 Act’s transfer provisions somehow vested mine operators with the right to request the reopening of Part B claims, we hold that the transfer provisions reaffirmed the requirement that the request for reopening come from the claimant. The 1981 transfer provisions instruct that transfer of benefit liability to the Fund can only take place for claims which, inter alia, have “been approved in accordance with the provisions of section 945” of title 30, 30 U.S.C. § 932(c)(2), and, as we have noted, 30 U.S.C. § 945(a)(1) provides that before a previously denied Part B claim can be “approved” or even reviewed, “the claimant ” must request that the claim be reopened. It seems clear that Congress, in incorporating 30 U.S.C. § 945(a)(1) by reference into the 1981 transfer provision, intended that transfer of benefit liability would take place only for those claims not abandoned by the person to whom the claim belongs, the person for whom the black lung benefits program was created, i.e., the miner, “the claimant.” We thus adhere to our holding in Krecota that a request for review of a Part B claim must come from the miner and not the operator.

Our conclusion is at least partially supported by Old Ben Coal Co. v. Luker, 826 F.2d 688 (7th Cir.1987). In Luker, as here, the miner had filed both a Part B and a Part C claim. The Part C claim was approved but the mine operator sought to have its liability for benefits transferred to the Fund by showing “good cause” for the miner’s failure to timely request review of his Part B claim. In Luker the mine operator presented to the Benefits Review Board affidavits of the claimant (i.e., the miner’s widow) that requested review of the denied Part B claim. The court treated this as the equivalent of a formal request for review of the denied Part B claim, and remanded the matter to the Board to determine whether there was “good cause” for the lateness of this request. In our case, we have no occasion to express a view on the propriety of treating a claimant’s request to the Board as the equivalent of a formal request for review, as the Court of Appeals for the Seventh Circuit did. Here, there was no such involvement by the claimant. Moreover, we note that the Luker court rejected the mine operator’s suggestion that it was unimportant whether a request had been made by the claimant. The court observed:

We do not accept this argument as a way around the Social Security regulations which require a specific election — whether by the formal election card or by some other means — to have the Part B claim reviewed. Under the controlling Social Security regulations, 20 C.F.R. § 704, Luker must have made a timely specific election to have the Part B claim reviewed. We believe that to accept [the mine operator’s] argument on this point would be to ignore the controlling regulations and with them the congressional intent to limit transfer to the number and type of claims already discussed.

826 F.2d at 697 n. 5.⁸

IV. CONCLUSION

In sum, we hold that, under 30 U.S.C. § 945(a)(1), the right to request the reopening of a denied Part B claim belongs only to “the claimant,” and, under the implementing regulations, only “the claimant” may request a finding of “good cause” for failure to seek timely review, see 20 C.F.R. § 410.705(c), § 727.103(c). Accordingly, there is no basis for Helen to become Burnsworth’s surrogate and we will deny the petition for review.

The Honorable Robert F. Kelly, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

1 . Pursuant to the Department of Education Organization Act, Pub.L. No. 96-88, § 509, 93 Stat. 668, 695 (1979) (codified at 20 U.S.C. § 3508 (1988)), the Department of Health, Education, and Welfare was redesignated the Department of Health and Human Services.

2 . It was expected that the states would assume responsibility in their respective workers' compensation programs for miners who contracted the disease “in the future.” H.R.Rep. No. 563, 91st Cong., 1st Sess., reprinted in 1969 U.S.Code Cong. & Admin.News 2503, 2516.

3 .Part B was technically extended until December 30, 1973, but a "transition period” was provided whereby all Part B claims filed from July 1, 1973, to December 31, 1973, were tendered to Labor and treated as Part C claims. Pub.L. No. 92-303, § 7, 86 Stat. 156-157, 30 U.S.C. § 925 (Supp. II 1973).

4 . As of September of 1977, Labor had apparently “failed to make even an initial claim determination in 50 percent of the cases filed.” 123 Cong.Rec. 29,847 (1977) (statement of Rep. Dri-nan).

5 . So in original. Should probably read, "§ 410.-704(d).” See n. 6 infra.

6 . Social Security regulations also provide that

[i]f a request for review [of a denied Part B claim] by [Social Security] or [Labor] is not received by [Social Security] within 6 months from the date the notice is mailed, the claimant shall be considered to have waived the right of review ... unless 'good cause’ can be established for not responding within this time period.

20 C.F.R. § 410.704(d).

Similarly, Labor regulations provide that, for Part B claims,

[i]f there is no response to notification [of the right to review by Social Security] ... within 6 months from the date notice is sent, unless the period is enlarged for good cause shown, the claimant shall be considered to have waived the right to review by [Social Security]-

20 C.F.R. § 727.104(b).

Finally, in 20 C.F.R. § 725.496, Labor provides, in pertinent part, that

[n]o claim filed with and denied by [Social Security] is subject to the transfer of liability provisions unless a request was made by or on behalf of the claimant for review of such denied claim under section 435 [30 U.S.C. § 945], Such review must have been requested by the filing of a valid election card or other equivalent document with [Social Security] in accordance with section 435(a) [30 U.S.C. § 945(a) ] and its implementing regulations at 20 CFR 410.700-410.707.

20 C.F.R. § 725.496(d).

In its brief and in oral argument, Helen explicitly foreswore any challenge to the validity of the regulations requiring that an election card be mailed back to Social Security within 6 months before Part B claims could be reviewed. We therefore do not have occasion to consider the validity of the regulations.

7 .Helen advanced this theory to Labor as the reason why its liability for Burnsworth’s benefits should be transferred to the Fund. Labor transferred the case to an administrative law judge and asserted before him that he did not have authority to make a "good cause” determination. In a Decision and Order issued July 28, 1987, however, the judge overruled this objection and found, at Helen’s urging, that there was "good cause" for Burnsworth not sending in the election card since the Social Security and Labor letters taken together were confusing. Nevertheless, citing Chadwick v. Island Creek Coal Co., 1 Black Lung Rep. (MB) 1-883 (Ben.Rev.Bd.1985), affd in banc, 8 Black Lung Rep. (MB) 1-447 (Ben.Rev.Bd.1986), the judge held that Helen’s liability for the claim filed with Social Security could not be transferred to the Fund. Helen then appealed to the Benefits Review Board. Chadwick, a Benefits Review Board decision, holds that a Part B claim, for .which a claimant has elected review, merges by operation of law with a Part C claim so that the Part B claim is not transferable to the Fund if the Part C claim is not transferable to the Fund.

The Director asserted before the Board that the judge’s determination that liability for Burnsworth’s benefits could not transfer was correct — not because of Chadwick but, “since [a] claimant is required to specifically elect review of [a] previously denied claim with ... [Social Security] under Part B of the Act_” (Emphasis added.) On April 28, 1989, slightly more than three months after we decided Krecota, the Board affirmed on the basis of Chadwick.

In this court, citing Krecota, the Director again asserts that it is the claimant and not the mine operator who can request review of a claim. In light of the fact that the Director specifically asserted to the Board that the claimant must specifically request review of a Part B claim for liability to transfer, we find that the Director’s right to put forward the "Krecota" issue here was not waived through failure to raise it before the Board. We therefore reject the suggestion in Helen’s brief on rehearing in banc that ”[t]echnically” the Director could be deemed to have waived an argument against transfer based on Krecota. See Director, Office of Workers’ Compensation Programs v. North American Coal Corp., 626 F.2d 1137, 1143 (3d Cir.1980).

We note that in their briefs in this court Helen and the Director suggest that Chadwick was erroneously decided. We agree. See Old Ben Coal Co. v. Luker, 826 F.2d 688, 693-98 (7th Cir.1987).

8 . We also take note of Director, Office of Workers’ Compensation Programs v. Quarto Mining Co., 901 F.2d 532 (6th Cir.1990), decided by a divided court. In Quarto, the claimant, who never filed the election card because he did not receive it, joined in a motion by the mine operator before the ALJ to have benefits liability transferred to the Fund under the provisions at issue in this case. Although the claimant never formally requested review of his Part B claim, the Quarto court held that the motion before the ALJ was tantamount to a formal request to Social Security that the Part B claim be reopened, that there was "good cause" for failure to request review, and that, without more, liability should be transferred to the Fund. We believe that Quarto holds little more than Luker and that both are inapposite in a case in which the claimant remained uninvolved in the transfer dispute.

We recognize that the opinion in Quarto contains dictum that is in conflict with the decision of this court in Krecota. In both Quarto and Krecota, the claimant had not received notice of his right to elect review of his denied Part B claim. In Krecota, we held that a lack of notice does not obviate the need for a claimant to elect review in order for liability to transfer. In Quarto, the Court of Appeals for the Sixth Circuit did not need to address the issue because the claimant had joined with the operator in seeking review. Nonetheless, as Judge Becker correctly notes, that court stated in dictum that in a case where the claimant has not received notice, the operator may elect review of the denied Part B claim. We have no occasion to comment on this aspect of Quarto since the issue there presented is not currently before us. We note, however, that our decision today, contrary to Judge Becker's suggestion, does not create a conflict with anything the Court of Appeals for the Sixth Circuit has said in dicta or otherwise. In this case, unlike in Quarto and Krecota, the claimant received notice of his right to elect review of his denied Part B claim.