                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2004

Kuntz v. Beltrami Entr Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3027




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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 03-3027


                             DOROTHY E. KUNTZ,
                          (Widow of Nicholas Kuntz, Jr.),

                                             Petitioner

                                        v.

  BELTRAMI ENTERPRISES, INCORPORATED; TRAVELERS INSURANCE
COMPANY c/o CONSTITUTION STATE SERVICES; DIRECTOR, OWCP, UNITED
                 STATES DEPARTMENT OF LABOR,

                                             Respondent




          On Petition for Review of an Order of the Benefits Review Board
                                 (No. 02-619 BLA)




                    Submitted under Third Circuit LAR 34.1(a)
                                October 1, 2004
              Before: RENDELL, FUENTES, SMITH, Circuit Judges.

                             (Filed: October 19, 2004)

                              OPINION OF THE COURT




FUENTES, Circuit Judge.
         Appellant Dorothy Kuntz (“Kuntz”), a miner’s widow, filed a claim for survivor

benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended (“the Act”),

30 U.S.C. § 901 et seq., a few years after her husband Nicholas died. The agency initially

found in her favor, and her husband’s employer and the employer’s insurer failed to

challenge those findings within the specified time. Ultimately, she was not awarded any

benefits, however, because an Administrative Law Judge (ALJ) found that good cause

existed to excuse the late challenge to the initial findings. On appeal, Kuntz contends that

the ALJ erred in finding that good cause existed to excuse the untimely challenge to her

claim. We affirm because the ALJ’s findings were supported by substantial evidence.1

I. Factual and Procedural Background

         Kuntz’ husband Nicholas died on March 30, 1993. Kuntz’ procedural odyssey began

when she filed a claim for survivor benefits under the Act with the Office of Workers’

Compensation Programs (“OWCP”), a division of the Department of Labor. 2 OWCP issued

a Notice of Claim naming Beltrami Enterprises, Inc. (“Beltrami”) as the responsible

employer. The Notice of Claim listed Beltrami’s address as: P.O. Box 1146, Harrisburg, PA

and incorrectly identified, as Beltrami’s insurance company, Lackawanna Casualty Co. c/o

Travelers Ins. Co., with a business address at P.O. Box 1507, One Mellon Bank Center,

Pittsburgh, PA. The Notice of Claim instructed Beltrami to notify OWCP within 30 days of


  1
      We have jurisdiction over this appeal pursuant to 33 U.S.C. § 921(c).
  2
   For brevity’s sake, we are not undertaking an explanation of the administrative
apparatus which awards benefits to miners and survivors of miners.

                                               2
receipt of the Notice of Claim whether Beltrami accepted liability as the responsible operator.

The Notice of Claim included an “Operator Response Form” to be completed by Beltrami.

Carol Roscher (“Roscher”), claims representative for Constitution State Services

(“Constitution”), timely submitted the Operator Response Form accepting Beltrami’s liability

as the responsible employer and listing Constitution as the responsible insurer. Roscher

listed Constitution’s address as: P.O. Box 1507, Pittsburgh, PA, the same address that OWCP

identified as Lackawanna’s address.

       On June 6, 1997, the OWCP issued a Notice of Initial Finding (“Initial Finding”)

concluding that Kuntz was entitled to benefits. The Initial Finding listed Beltrami’s address

as it appeared on the Notice of Claim. However, instead of identifying Constitution as the

insurer, the Initial Finding, like the Notice of Claim, incorrectly identified Lackawanna as

the insurer. Not only did the Initial Finding name the wrong insurer, it was sent to the wrong

address: 16 South River Place, Wilkes-Barre, PA, rather than P.O. Box 1507, Pittsburgh,

PA. The Initial Finding instructed Beltrami and Lackawanna to challenge the Initial Finding

within 30 days if either of them contested the claim and indicated that an “Operator

Controversion” form was enclosed. At the end of the document there was a “cc” next to four

names, one of which was Constitution.

       On July 15, 1997, more than a week after the challenge deadline had passed, OWCP

claims examiner Ken Lubinsky documented in a call report that he and Roscher of

Constitution spoke about the Initial Finding. Lubinsky noted that the Initial Finding was sent



                                              3
to an address that differed from the insurer address listed on the Notice of Claims.

According to Lubinsky’s call report, Roscher represented the following in the conversation:

1) that she had never seen the Initial Finding, 2) she had not seen any of the corresponding

documents, 3) she would fax over a controversion form, and 4) Constitution is a subsidiary

of Travelers and they have accepted liability.      Based on the conversation, Lubinsky

documented that he was changing the carrier identification number to reflect Travelers. That

same day, Roscher submitted the appropriate form to challenge the Initial Finding via fax.

Also on July 15, 1997, Lubinsky sent Roscher a letter acknowledging receipt of the challenge

to the Initial Finding. 3

        In early fall of 1997, OWCP issued an Amended Notice of Initial Finding to

document that Travelers was the proper insurance carrier. The letter released Lackawanna

as a party to the claim.

       In a hearing before the ALJ, Kuntz argued that Constitution had waived its ability to

challenge the claim because it failed to respond within 30 days after the Initial Finding was

issued. On May 6, 2002, the ALJ issued a decision and order concluding that Constitution

demonstrated good cause for its late challenge because it had not been properly notified of

the Initial Finding. Specifically, the ALJ found that the carrier was misidentified in the




  3
   During the month of August, a number of letters were exchanged between counsel for
Beltrami/Constitution and OW CP relating to the submission of additional evidence.
None of the letters were referenced in the ALJ ruling and thus we decline to discuss them
here.

                                             4
Initial Finding and that it had been sent to the wrong address. The ALJ also concluded that

he would not presume Constitution received the Initial Finding solely based on the “cc”

appearing at the end of the document. Kuntz appealed this decision to the Benefits Review

Board (“the Board”). The Board determined that the ALJ did not abuse its discretion in

determining that there was good cause to excuse the untimely filing of the challenge and that

substantial evidence supported the ALJ’s decision. The instant appeal followed.4

II. Standard of Review

       We limit our review of the Board’s decision to a determination of whether an error

of law has been committed and whether the Board has adhered to its scope of review.

Kowalchick v. Dir., Office of Workers' Compensation Programs, 893 F.2d 615, 619 (3d Cir.

1990). The ALJ’s findings of fact are affirmed by the Board if the findings are supported by

substantial evidence. Oravitz v. Director, Office of Workers' Compensation Programs, 843

F.2d 738, 739 (3d Cir. 1988). Thus, our task is to independently review the record to

determine whether the ALJ’s findings are supported by substantial evidence. Walker v.

Universal Terminal & Stevedoring Corp., 645 F.2d 170, 172 (3d Cir. 1981). “‘Substantial

evidence’ is ‘more than a mere scintilla. It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Smith v. Califano, 637 F.2d 968,

970 (3d Cir. 1981) (internal citations omitted).


  4
   Kuntz actually received three adverse decisions from the ALJ, all of which were
appealed to the Board upon their issuance. The instant appeal involves only the May 6,
2002 ruling.

                                              5
III. Discussion

         Under § 725.4135 of the 1997 Code of Federal Regulations, an operator failing to

respond within 30 days after given notice of the Initial Finding waives its right to challenge

the claim unless the OWCP excuses the operator’s failure to respond for good cause. Federal

Coal Mine Safety and Health Act, 20 C.F.R. § 725.413 (1997).6 It is undisputed that

Constitution challenged the claim later than 30 days after the Initial Finding was issued. The

issue before the ALJ, and thus the issue before us, is whether there existed good cause to

excuse Constitution’s failure to challenge the claim within the permissible time. While both

parties agree that we must determine whether the ALJ’s finding of good cause was supported

by substantial evidence, neither party, nor the ALJ, nor the Board has proffered any standard

for determining what constitutes good cause. Although § 725.413, which sets forth the

regulations for contesting the Initial Finding, does not define good cause, the regulations

implementing the Act describe what constitutes good cause for excusing late filings in other

contexts. For example, when excusing a delay in the timely filing of support, § 410.216

discusses the concept of good cause as follows:

         (a) What constitutes "good cause." Good cause may be found for failure to file proof
         of support within ...the [specified] period where the [person] establishes to the

  5
      Section 725.413 does not exist in the 2004 Code of Federal Regulations.
  6
      The Initial Finding also warns:
         If you fail to respond within thirty (30) days, you will be deemed to have accepted
         the initial finding, and this failure shall be considered a waiver of your right to
         contest this claim unless good cause is shown to excuse such failure. (20 CFR
         725.413)

                                                  6
       satisfaction of the Administration that such failure to file was due to:
              (1) Circumstances beyond the individual's control, such as extended illness,
              mental or physical incapacity, or communication difficulties; or...

Id. at 410.216 (emphasis added).

       As it is well-settled law that a word or phrase used in different parts of the same

statute is presumed to have the same meaning throughout, Atlantic Cleaners & Dyers, Inc.

v. United States, 286 U.S. 427, 433 (1932), we discern that there is no rational basis for

having a standard for good cause in § 725.413 of the regulation that differs from the standard

set forth in § 410.216 of the regulation. Hence, Constitution’s untimely challenge of Kuntz’

claim is excused if the reason for the delay matches one of the scenarios establishing good

cause under § 410.216. The ALJ found that the Initial Finding was sent to Lackawanna

rather than Constitution. He reached this conclusion from three pieces of evidence: (1)

Lackawanna had been misidentified as the insurer on the Initial Finding, (2) the conversation

between Roscher and Lubinsky, and 3) the substitution of Travelers for Lackawanna in the

Amended Notice of Initial Finding. The ALJ also found that the “cc” appearing at the end

of the Initial Finding was not sufficient proof in the instant circumstances that a copy of the

Initial Finding was in fact mailed to Constitution. The ALJ offered substantial evidence that

Constitution was not properly served the Initial Finding because of confusion on the part of

OWCP as to where the Initial Finding was to be sent. This qualifies as a communication

difficulty beyond Constitution’s control, one of the scenarios establishing good cause under

the regulation. See 20 CFR § 410.216(a)(1). Because the Board correctly determined that



                                              7
substantial evidence supported the ALJ’s finding that good cause excused Constitution’s late

challenge, we affirm.

       We have considered all of the arguments advanced by the parties and conclude that

they are without merit and require no further discussion. Accordingly, the order of the

Benefits Review Board will be affirmed.




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