John Selak v. Wyoming Pocahontas Land Company (Board decision, June 7, 1999)

BRB final decision. The Benefits Review Board affirmed the denial of Wyoming Pocahontas Land Company's request to modify John Selak's black lung benefit award. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may seek Board reconsideration within 30 days under § 802.407.

Plain-English summary

John Selak had an existing black lung benefit award. Wyoming Pocahontas Land asked to modify it, arguing that his work at an assisted living institution showed he could work despite earlier evidence of blackouts. The company also wanted the Department of Labor to order another medical examination. The Board held that the Department had no duty to develop evidence for the employer's modification case and that the employer had not proved a factual mistake or a change in Selak's condition. It affirmed the denial of modification, leaving the benefit award in place.

Decision snapshot

• Authority: Modification under 20 C.F.R. § 725.310 and medical examination requests under § 718.404(b).
• Outcome: Employer's modification request denied; existing benefit award retained.
• Key point: The employer bore the burden on modification and could not rely on the Department to develop its evidence.

Full text (BRB public release)

BRB No. 97-0976 BLA

JOHN SELAK
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Claimant-Respondent
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v. )
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WYOMING POCAHONTAS LAND ) DATE ISSUED:

COMPANY
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Employer/Petitioner )
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DIRECTOR, OFFICE OF WORKERS'
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COMPENSATION PROGRAMS, UNITED
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STATES DEPARTMENT OF LABOR
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Party-in-Interest ) DECISION and ORDER

Appeal of the Decision and Order - Denial of Employer’s Request for Modification of Thomas F. Phalen, Jr., Administrative Law Judge, United States Department of Labor.

Eileen S. Goodin (Barkin & Neff), Columbus, Ohio, for claimant.

John G. Paleudis (Hanlon, Duff, Paleudis & Estadt Co., LPA), St.
Clairsville, Ohio, for the employer.

Jennifer U. Toth (Marvin Krislov, Deputy Solicitor for National Operations;
Donald S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, the United States Department of Labor.

Before: HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY, Administrative Appeals Judges.

PER CURIAM:

Employer1 appeals the Decision and Order - Denial of Employer’s Request for Modification (96-BLA-1233) of Administrative Law Judge Thomas F. Phalen, Jr.

rendered on a claim filed pursuant to the provisions of the Federal Coal Mine Health and

Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act). The administrative law

judge denied employer’s request for modification as he found that the evidence did not

establish a mistake in fact in the prior Decision and Order or a change in conditions. The

administrative law judge found, rejecting employer’s contention, that the district

director’s refusal to order claimant to submit to a medical examination was not an abuse

of discretion.

On appeal, employer contends that the prior finding of no rebuttal at Section

727.203(b)(2) constitutes a mistake in a determination of fact, that claimant’s condition

has changed and that the administrative law judge abused his discretion in refusing to

order claimant to undergo a medical evaluation to determine the nature and extent of his

epilepsy. Claimant responds, arguing that the administrative law judge’s Decision and

Order be affirmed. The Director, Office of Workers’ Compensation Act addressing only

the argument that the administrative law judge erred in denying employer’s request to

compel claimant to submit to a medical examination, urges affirmance of the decision.

I

This claim has an extensive procedural history, and has been before the Board on

three prior appeals.2 Claimant, who is now 82 years old, filed for benefits under the Act on September 21, 1977. DX-1. After numerous adjudications before the administrative

law judge and the Board, culminating in the Board's affirmance of an award of benefits

under the interim criteria, 20 C.F.R. Part 727, Selak v. Youghiogheny & Ohio Coal Co.,

BRB No. 92-1281 BLA (Nov. 3, 1993)(unpub.), employer appealed to the United States

Court of Appeals for the Sixth Circuit, which affirmed the award. Youghiogheny & Ohio

Coal Co. v. Selak, No. 93-4370 (6th Cir. Aug. 29, 1995)(unpub.); DX-44.

Employer's petition for modification centers on its allegations that the prior

findings that the record failed to establish rebuttal of the interim presumption constituted

a mistake in determination of fact or that claimant's condition has changed. In order to

rebut the interim presumption pursuant to Section 727.203(b)(2), the party opposing

entitlement must establish that a claimant is able to do his usual coal mine employment or

comparable and gainful work, viz. that the claimant is not disabled by any reason. See

Peabody Coal Co. v. Ferguson, No. 97-3050, 1998 WL 145246 at *1 (6th Cir. April 1,

1998); York v. Benefits Review Board, 819 F.2d 134, 137, 10 BLR 2-99, 2-103 (6th Cir.

1987).

Claimant's epilepsy-induced blackouts precluded rebuttal of the interim

presumption pursuant to Section 727.203(b)(2).3 On December 19, 1995, counsel for

employer filed a petition for modification with the district director, see 33 U.S.C. §922;

20 C.F.R. §725.310, asserting that claimant was no longer disabled as demonstrated by

his work with an assisted-living institution named the Inn at SharonBrooke. Employer

averred that this evidence shows that claimant is no longer disabled by epilepsy because he no longer suffers from blackouts, hence, the award should be reopened, either because

a finding of entitlement constitutes a mistake in determination of fact or because

claimant’s post-award employment with SharonBrooke demonstrates a change in his

physical condition, so that rebuttal of the interim presumption at Section 727.203(b)(2) is

no longer precluded.4

Employer suggested that claimant had concealed his employment with the assisted

living home, and requested that the Department of Labor order a medical evaluation to

determine the nature and extent of claimant's epilepsy. See 20 C.F.R. §718.404. In the

alternative, employer requested an offset against its compensation liability for amounts

received by claimant in salary from the Inn at SharonBrooke. DX-47; see DXs-50, 52.

The district director issued a “Proposed Decision and Order Denying Request for

Modification” on May 10, 1996, DX-55, and on May 31, 1996, employer’s request for

modification was referred to the Office of Administrative Law Judges for a formal

hearing. DX-58.

After a formal hearing, the administrative law judge rejected employer’s

modification petition. The administrative law judge found that claimant’s employment

with SharonBrooke did not prove that he retained the physical capacity to engage in his

usual coal mine, or comparable and gainful, employment. The administrative law judge

also rejected employer’s assertion that the refusal by the district director to order claimant

to attend a medical examination constituted an abuse of discretion. Finally, the

administrative law judge, reviewing the administrative record as a whole, ruled that

employer failed to prove either a mistake in determination of fact or a change in condition and denied employer’s request for modification. This appeal followed.

The Board's scope of review is defined by statute. If the findings of fact and

conclusions of law of the administrative law judge are supported by substantial evidence,

are rational, and are consistent with applicable law, they are binding upon this Board and

may not be disturbed. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a);

O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). Upon

consideration of the Decision and Order - Denial of Employer’s Request for

Modification, the administrative record as a whole as well as the arguments of counsel,

we conclude that the administrative law judge's refusal to modify the award of benefits in

this case is supported by substantial evidence, accords with applicable law and that his

rulings do not constitute an abuse of discretion. We therefore affirm the Decision and

Order - Denial of Employer’s Request for Modification in all respects.

II

Employer argues that the Director abused his discretion by not ordering a new

medical examination of claimant. Employer maintains that Section 718.404(b), 20 C.F.R.

§718.404(b), of the Secretary’s regulations mandates that claimant submit to a new

medical examination, that the Director was required to develop medical evidence of

claimant's current medical condition, and that the Sixth Circuit’s decision in Cal-Glo

Coal Co. v. Yeager, 104 F.3d 827, 21 BLR 2-1 (6th Cir. 1997) requires that a medical

examination be provided by Director in order to avoid “manifest injustice.”

These arguments are without merit. Although the Director is required by statute to

provide a claimant with a complete pulmonary examination, 30 U.S.C. §923(b); 20 C.F.R. §§718.101; 718.404(b); see Newman v. Director, 745 F.2d 1162, 1166, 7 BLR 2-

25, 2-31 (8th Cir. 1984); Hall v. Director, OWCP, 14 BLR 1-51, 1-54 (1990)(en banc);

see also Hodges v. BethEnergy Mines, Inc., 18 BLR 1-84, 1-87-93 (1994), there is no

corollary mandate that the Director must assist employer in pursuing the defense of a

claim or to develop evidence on modification. Although the district director concluded

that a reexamination of claimant was not required in this case, his decision does not

preclude employer from developing its case on modification. We do not address

employer’s argument that it has a right to an examination under Section 718.404(b) and

the Director’s response that employer did not comply with Section 718.404(b) by

requesting claimant to submit to an examination upon reasonable notice.

Employer bears the burden of proof on modification. Branham v. BethEnergy

Mines, Inc., 20 BLR 1-28, 1-34 (1996). In this instance, employer failed to develop the

record on modification, relying instead on some perceived duty of the Director to develop

its case. We agree with the Director that Section 718.404(b), which would require a

claimant to submit to medical examinations in circumstances such as these, was written to

facilitate modification; this provision exists to aid in discovery, and is available to

employer to facilitate the presentation of its case on modification. Nowhere do the

Secretary's regulations, and particularly the provision in question, prevent any party

opposing entitlement on modification from relying on Section 718.404(b) to develop

current medical evidence.

Employer's reliance on the court of appeals' decision in Yeager is misplaced.

Although Yeager and related Sixth Circuit cases have emphasized the mandate for fair procedure because of the change in the rebuttal law in the wake of York, Yeager is plainly

inapposite to the case at bar. The instant employer's failure to develop the record on

modification resulted either from inaction on its part or from a litigation decision to rely

solely on claimant's testimony as to the nature and extent of his blackouts. Unlike the

respondents in Yeager and its progeny, employer was on notice of its burden on rebuttal

at Section 727.203(b)(2), York, as well as its complementary burden of proof on

modification. See Branham, 20 BLR at 1-34; 20 C.F.R. §718.403.

Accordingly, we reject out of hand employer's challenge to the administrative law

judge's finding that the district director was not required to order a medical examination

of claimant. We hasten to observe that, although a party may seek to reopen an award on

a continuous basis, and employer may thus attempt to compel claimant to undergo

medical testing at its expense, attempts by a party to relitigate successive petitions for

modification to cure deficiencies in its case have met with judicial disfavor. See General

Dynamics Corp. v. Director, OWCP, 673 F.2d 23, 14 BRBS 636 (1st Cir. 1982); McCord

v. Cephas, 174 U.S.App. D.C. 302, 306, 532 F.2d 1377, 1381 (1976). We share the view,

reflected in these cases, that an attempt to rectify failed tactical judgment would almost

never warrant a finding that reopening a claim would render justice under the Act.

III

We also hold that employer has failed to point out any error in the administrative

law judge's application of the law to the facts of the instant case. Employer contends at

length that the administrative law judge failed to grasp the crucial issue on modification,

and erred in relying on claimant's testimony to arrive at a decision that modification should be denied in this instance. We disagree.

Judged from the context of the Decision and Order, the administrative law judge

clearly found that the record does not support a finding that claimant, due to any respite

from blackout spells, or because of his employment at the Inn at SharonBrooke, now has

the physical capacity to perform the exertional demands of his usual coal mine

employment, or comparable and gainful work. Employer’s arguments about the

administrative law judge's evaluation of the testimony and resulting refusal to modify this

claim are essentially requests that the Board either reweigh the evidence or intrude upon

the administrative law judge's discretion to conclude that the extant record does not

support modification. In short, the administrative law judge reasonably was not

persuaded that claimant's epilepsy was no longer a threat to produce blackouts, especially

given the lack of medical evidence that cliamant’s epilepsy no longer exists. In addition,

the administrative law judge observed that employer offered no medical evidence that

claimant was no longer totally disabled and the administrative law judge found claimant’s

testimony too imprecise to support a finding of no total disability.

The administrative law judge is charged with the evaluation and weighing of the

evidence, may draw appropriate inferences therefrom. See Consolidation Coal Co. v.

Worrell, 27 F.3d 227, 231, 18 BLR 2-290, 2-298 (6th Cir. 1994); see also Todd Shipyards

Corp. v. Donovan, 300 F.2d 741, 742 (5th Cir. 1962). Because the administrative law

judge’s evaluation of the evidence is not “inherently incredible or patently unreasonable,”

Cordero v. Triple A Machine Shop, 580 F.2d 1331, 1335, 8 BRBS 744, 747 (9th Cir.

1978), cert. denied 440 U.S. 911 (1979), and because the record provides substantial evidence to support the administrative law judge's determination that reopening this claim

would not be warranted, we affirm the Decision and Order - Denial of Employer’s

Request for Modification in all respects.5

Accordingly, the Decision and Order - Denial of Employer’s Request for

Modification is affirmed.

SO ORDERED.

BETTY JEAN HALL, Chief
Administrative Appeals Judge

JAMES F. BROWN
Administrative Appeals Judge

REGINA C. McGRANERY
Administrative Appeals Judge