On July 3, 2014, the U.S. Court of Appeals for the Fourth Circuit released an interesting unpublished, per curiam opinion in Eastern Associated Coal Co. v. Director, OWCP [Vest] (decision here) affirming a black lung award.
The facts of the case are unusual and involve parallel “living miner”/survivor claims that come to different outcomes due to the Department of Labor’s efforts to recoup interim pay amounts. (To clarify, the term “living miner” claim can be confusing because it is unfortunately common that after a miner files a claim, he passes away while his claim is pending. In the black lung system, these claims continue to be known as “living miner” claims—as opposed to survivor’s claims—even though the miner is no longer living. The “living miner” claim is then pursued by the miner’s estate, or as this case shows, the Department of Labor.)
The coal miner, Roy Michael Vest, filed a claim for federal black lung benefits on May 16, 2001. Mr. Vest was successful before the District Director and began receiving interim pay from the Black Lung Disability Trust Fund while the responsible operator sought a formal hearing before an Administrative Law Judge (“ALJ”).
After the ALJ’s hearing, but before his decision, Mr. Vest passed away on May 8, 2006. Two days after Mr. Vest passed away, the ALJ awarded benefits on Mr. Vest’s claim.
Following the ALJ’s decision, Mr. Vest’s widow filed a claim for survivor’s benefits. In short, Mrs. Vest’s claim was denied because on November 3, 2008 the ALJ found the medical opinion of Dr. Paul Wheeler—which read a CT scan to be negative for complicated pneumoconiosis—to be “most probative.” (See below for an interesting footnote from the Fourth Circuit about Dr. Wheeler)
While Mrs. Vest was pursuing her survivor’s claim, Mr. Vest’s living miner claim was still knocking around the system without a final award of benefits. While Mr. Vest’s claim was still pending, Mrs. Vest remarried and and counsel for Mr. Vest (Frederick K. Muth) informed the ALJ that he did not have authority to act on behalf of Claimant’s estate and was retiring from practice.
One might think that this would be the end of the story—the miner was dead, the widow remarried, their lawyer retired—but this is where the case gets interesting: The Director refused to allow the ALJ to dismiss the case and instead asked the ALJ to resolve the case on the merits because the Trust Fund made interim payments to the miner and the Director had a duty to recoup money on behalf of the Trust Fund. Because the Director did not consent to dismissal, the ALJ had to issue a decision on the merits due to 20 C.F.R. § 725.465(d) which prevents ALJs from dismissing cases that involved interim pay without the Director’s consent.
Mr. Vest’s claim resulted in a January 27, 2009 award of benefits because, among other things, the ALJ reached a different conclusion regarding the probative value of Dr. Wheeler’s readings. That award is what was before the Fourth Circuit.
The coal company made two arguments to the Fourth Circuit:
- Section 725.465(d) of the black lung regulations—the provision that required the ALJ to ask whether the Director consented to dismissal of Mr. Vest’s claim once no one was representing the claimant’s interests—violates the Administrative Procedures Act (which requires ALJs to make decisions in an “impartial manner” and forbids ALJ’s being “subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency”).
- The previous ALJ decision in Mrs. Vest’s surivor’s claim (which relied upon Dr. Wheeler’s opinion to find that Mr. Vest did not have complicated pneumoconiosis) precluded the Trust Fund from arguing in Mr. Vest’s living miner claim that Mr. Vest had complicated pneumoconiosis.
The Fourth Circuit (made up of a panel of Judges Gregory, Thacker, and Davis) rejected both arguments and affirmed the benefits award in Mr. Vest’s living miner claim.
The court said it found the company’s Administrative Procedures Act argument “meritless.” The court explained that the Administrative Procedures Act is not violated by requiring the Director’s consent before dismissal because the Director is not instructing the ALJ how to rule, but rather only requiring the ALJ to rule.
The court likewise rejected the company’s second argument. It said that because the survivor’s claim was a separate cause of action, Mr. Vest’s estate was not a party to the action, and Mrs. Vest did not understand herself to be representing Mr. Vest, then the decision in Mrs. Vest case could not collaterally estop issues in Mr. Vest’s claim—even though Mr. and Mrs. Vest’s interests were aligned. In footnote 14, the court distinguished the company’s attempted use of “defensive” collateral estoppel from “offensive” collateral estoppel in which a widow may bind a company to conclusions from the miner’s previous claim. (The difference being that in in the latter situation, the company was a party to the previous case, while in the former the claimant was not a party.)
The end result is that the ALJ’s award of benefits in Mr. Vest’s claim is affirmed and the coal company has to pay the Trust Fund back for the amount that Mr. Vest received from the Trust Fund.
In an interesting footnote, the court discussed the Center for Public Integrity/ABC News investigation of Dr. Paul Wheeler. The Court stated:
Although the underlying merit of Mrs. Vest’s benefits determination is not at issue in this appeal, we are compelled to note that ALJ Tureck found “the [negative] CT scan interpretations by Dr. [Paul] Wheeler,” an Associate Professor of Radiology at the Johns Hopkins Medical institutions, to be “most probative” in concluding that Claimant did not suffer from pneumoconiosis. J.A. 82. Dr. Wheeler’s opinions have since been challenged in a joint investigation by ABC News and the Center for Public Integrity (“CPI”), which found that he had never once, in reading more than 3,400 x-rays over the course of thirteen years, interpreted an x-ray as positive for pneumoconiosis. The DOL recently issued a bulletin instructing its district directors to “(1) take notice of this reporting and (2) not credit Dr. Wheeler’s negative readings for pneumoconiosis in the absence of persuasive evidence either challenging the CPI and ABC conclusions or otherwise rehabilitating Dr. Wheeler’s readings.” Div. of Coal Mine Workers’ Comp., U.S. Dep’t of Labor, BLBA Bulletin No. 14-09 (June 2, 2014), available at http://www.dol.gov/owcp/dcmwc/blba/indexes/BL14.09OCR.pdf.
It’s good to see that the court is aware of the issues with Dr. Wheeler and felt “compelled” to note them. (A previous post discussing the DOL’s bulletin regarding Dr. Wheeler is available here.)
The decision comes to the correct conclusion by allowing the Department of Labor to protect the Trust Fund and by holding that nonparties are not bound by prior related decisions, even if their interests are aligned.
Congratulations to the attorneys from the Solicitor’s Office for the Department of Labor for their success on behalf of the Trust Fund.