                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-1995

Keating v. Dir., Office of Workers' Comp. Programs
Precedential or Non-Precedential:

Docket 94-3593




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                            No. 94-3593


             MARTHA KEATING, Widow of John Keating,
                                     Petitioner

                                 V.

      DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
               UNITED STATES DEPARTMENT OF LABOR,
                                     Respondent


  PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD
                     BRB Docket No. 92-1245


                       Argued July 27, 1995

         Before:   NYGAARD and McKEE, Circuit Judges and
                      FULLAM, District Judge*

               (Opinion Filed December 12, 1995)


MAUREEN H. KRUEGER, ESQUIRE (Argued)
Suite 211
1653 The Fairway
Jenkintown, PA 19046
Attorney for Petitioner

PATRICIA M. NECE, ESQUIRE
EDWARD WALDMAN, ESQUIRE (Argued)
United States Department of Labor
Office of the Solicitor
200 Constitution Avenue, N.W.
Suite N-2605
Washington, DC 20210
Attorneys for Respondent



                                 1
* Honorable John P. Fullam, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.



                         OPINION OF THE COURT




NYGAARD, Circuit Judge
       The claimant, Martha Keating, appeals from a Benefits Review

Board decision affirming an Administrative Law Judge's order

rejecting her petition for modification.    Her claim for Black

Lung benefits as the surviving spouse of John Keating has a

shamefully long history.    It has been before three different ALJs

and before the Board on three separate occasions.     Although given

several chances to consider properly Mrs. Keating's claim for

survivor benefits, the ALJs and the Board repeatedly failed to do

so.    Instead, they dismissed her persistence as merely shopping

for a "friendly factfinder."    It is not apparent from the record

whether she was shopping for a friendly factfinder or just a fair

one.    It is painfully obvious, however, that she found neither.

Today, we will end this travesty.     Based on the uncontradicted

evidence conceded by the Director to be credible,0 we conclude

that the record establishes that Mrs. Keating is entitled to

survivor benefits.    We will grant the petition for review,


0
The Director's Brief provides that:

       We have no quarrel with Keating as to the credibility
       of the lay evidence. We accept the facts asserted as
       true.

                                  2
reverse the decision of the Board, and remand the cause for the

limited purpose of awarding Mrs. Keating benefits from August of

1978.0

                                  I.

     Nearly seventeen years ago, in February 1979, Mrs. Keating

filed for survivor benefits under the Federal Black Lung Benefits

Act, 30 U.S.C. §§ 901-945, as the surviving widow of miner John

Keating, who died on July 19, 1978.
     Benefits are provided under the Act for or on behalf of
     miners who are totally disabled due to pneumoconiosis,
     or who were totally disabled due to pneumoconiosis at
     the time of death . . . .

20 C.F.R. § 718.204(a).   The Department of Labor denied the claim

and she requested a formal hearing before an ALJ.      ALJ Marcellino

(ALJ 1) held a hearing in December 1980, at which Mrs. Keating

offered lay witness testimony and her husband's death

certificate, but no medical evidence.0      ALJ 1 denied benefits in

April 1981.

     ALJ 1 found that John Keating worked as a miner for various

periods from 1939 through 1953.       He worked part-time after school

and on weekends in the "dog hole" mines from 1939 to 1942, for

0
Mrs. Keating requests benefits beginning with the month after
the miner's death, August 1978. Section 725.503(c), 20 C.F.R.,
provides:

      Except as is provided in Part 727 of this subchapter,
      in the case of a survivor of a miner who died due to or
      while totally disabled by pneumoconiosis, benefits
      shall be payable beginning with the month of the
      miner's death, or January 1, 1974, whichever is later.
0
  Lack of available medical evidence was explained, in part,
because a coroner, who was not a medical doctor, signed the death
certificate and because the two doctors who periodically treated
John Keating were both dead and their records not obtainable.

                                  3
which ALJ 1 credited the deceased with one year of employment.

The Director conceded seven years of coal mine employment from

1946 to 1953.   Hence, ALJ 1 credited the deceased with a total of

eight years as a miner and found that Mrs. Keating was not

entitled to any presumptions under the Act, because the deceased

had fewer than ten years of coal mine employment.

     According to ALJ 1, "the death certificate conclusively

establishe[d] that the cause of death was acute cardiac and

respiratory failure, with anthracosilicosis contributing to

death."   He stated that lack of evidence to show pneumoconiosis

was either:   1) a multiple cause of death not medically

distinguishable from the cause of death, or 2) related to or an

aggravating cause of death, prevented a finding that Keating died

from pneumoconiosis.   Therefore, Mrs. Keating would have to prove

that, at the time of his death, Keating suffered total disability

as a result of pneumoconiosis from coal mine employment.

     ALJ 1 then mistakenly decided that because Mrs. Keating was

not entitled to any presumptions she could not prove

pneumoconiosis solely by lay testimony, stating
     [w]hile the lay testimony of a widow and persons with
     knowledge of the miner's condition could in some cases
     establish a presumption of pneumoconiosis, where the
     miner has less than ten years of coal mine employment
     this evidence is simply insufficient to establish the
     existence of pneumoconiosis.

(Emphasis added).   Incongruously, the ALJ found the death

certificate alone competent to conclusively establish the cause

of death, acute cardiac and respiratory failure with

anthracosilicosis with emphysema contributing to death, but not



                                4
competent to establish pneumoconiosis.      ALJ 1 denied Mrs.

Keating's claim without considering the properly submitted lay

evidence.

     Mrs. Keating appealed the Decision and Order of ALJ 1 to the

Board.   Mrs. Keating argued that ALJ 1 erred by finding fewer

than ten years of coal mine employment and by not giving proper

weight to the lay testimony and death certificate.      Almost three

years later, the Board affirmed the denial of benefits, affirmed

the finding of fewer than ten years of coal mine employment, and

stated that it could not say the ALJ unreasonably determined that

the lay evidence of record alone was insufficient to establish

either death or total disability from pneumoconiosis.      ALJ 1,

however, did not determine that the lay evidence failed to

establish Mrs. Keating's claim.       Instead, he simply decided that

lay evidence alone was insufficient if the miner had fewer than

ten years of coal mine employment.

     In August 1985, Mrs. Keating filed a second claim for

benefits, which the Department of Labor treated as a request for

modification under 20 C.F.R. § 725.310, and denied.      In her

request for modification, Mrs. Keating offered a newly discovered

Anthracite Miners Certificate as evidence that ALJ 1 incorrectly

credited her husband with fewer than ten years employment.        Mrs.

Keating also argued that ALJ 1 mistakenly decided the ultimate

fact, her entitlement to benefits.

     ALJ Tierney (ALJ 2) held a hearing two years later on

whether ALJ 1's decision should be modified.      He denied the

modification request.   In summary fashion, ALJ 2 stated that


                                  5
modification would be granted only if Mrs. Keating proved a

mistake of fact, and added that failure to present all available

relevant evidence at the initial hearing does not constitute a

mistake of fact.   ALJ 2 made a conclusory statement that the "new

evidence," the miner's certificate, was available at the time of

the initial hearing and because Mrs. Keating testified at that

hearing she had no basis to request modification.      He flatly

refused to consider the significance of the miner's certificate

and Mrs. Keating's contention that ALJ 1's finding that she was

not entitled to benefits constituted a mistake of fact.

     A year later the Board affirmed ALJ 2 on appeal, basically

reiterating the ALJ's decision.       The Board acknowledged that ALJ

2 may have erred by failing to consider the effect of the miner's

certificate, but added that the new evidence, even if considered,

would not support a finding of ten years of coal mine employment.

It noted, however, that if fully credited, the miner's

certificate would support a finding of 9 years and 8 months of

coal mine employment.   Although Mrs. Keating clearly presented

the issue, the Board did not consider whether ALJ 1 mistakenly

decided the ultimate fact.   The Board operated under the

erroneous assumption that, even though her case was filed before

1982, without medical evidence she must show employment for at

least ten years.

     On June 13, 1990, Mrs. Keating once again sought proper

consideration of her claim by filing a modification petition. ALJ

Brown (ALJ 3) denied it one and a half years later, in February

1992.   ALJ 3 did not consider carefully Mrs. Keating's petition


                                  6
and ignored the fact that no judge had weighed the lay testimony

on the deceased miner's condition.    Instead, ALJ 3 chastised the

widow, stating the modification process "does not permit

continuous reweighing of testimony by Judge after Judge until a

friendly factfinder is found."

     Mrs. Keating again appealed to the Board.    The Director this

time agreed with Mrs. Keating that the administrative law judges

had not properly considered her claim or modification requests,

and filed a motion with the Board requesting remand to ALJ 3 for

proper consideration.0    In August 1994, the Board denied the

Director's motion and affirmed ALJ 3's decision.

     The Board concluded that ALJ 3 found no mistake of fact and

denied benefits.   It also opined that Mrs. Keating failed to

argue mistake of fact.    This, however, is incorrect.   ALJ 3

refused both to consider the evidence and to decide if there had

been a mistake of fact.    In affirming, the Board stated that Mrs.

Keating's arguments (first, that the evidence of record

established her entitlement to benefits and second, that the ALJ

made a mistake of fact) amount instead to assignments of legal

error or mistake in law and are not proper grounds for

modification.   Mrs. Keating now petitions for review.


0
The Director's Brief provides:

     [W]e are not unmindful of the long tortured procedural
     history of this case, which has already dragged on for
     far too long. We also accept our share of the
     responsibility for the delay, as we did not recognize
     that Keating had yet to receive a proper evaluation of
     her evidence until this case was before the Board for
     the third time.

                                  7
                                 II.

     First, we must determine whether the Board erred by

upholding ALJ 3's refusal to consider whether Mrs. Keating had

established a mistake of fact.    It is important to note the

purpose behind the Act in order to fully appreciate both the

injustice to Mrs. Keating, and how the treatment of her case runs

counter to congressional goals.       Section 901(a), 30 U.S.C.,

provides:
     It is . . . the purpose of this subchapter . . . to
     ensure that in the future adequate benefits are
     provided to coal miners and their dependents in the
     event of their death or total disability due to
     pneumoconiosis.

The courts have repeatedly recognized that the remedial nature of

the statute requires a liberal construction of the Black Lung

entitlement program to ensure widespread benefits to miners and

their dependents. Kline v. Director, OWCP, 877 F.2d 1175, 1180

(3d Cir. 1989).

     Under 20 C.F.R. § 718.202,0 in claims such as Mrs. Keating's

filed before January 1, 1982, the claimant can rely solely on lay

testimony.   As we stated in Hillibush v. United States Dept. of



0
 Section 718.202(c), 20 C.F.R., regulates a finding of
pneumoconiosis and provides:

     A determination of the existence of pneumoconiosis
     shall not be made . . . [in] a claim involving a
     deceased miner filed on or after January 1, 1982,
     solely based upon the affidavit(s) (or equivalent sworn
     testimony) of the claimant and/or his or her dependents
     who would be eligible for augmentation of the
     claimant's benefits if the claim were approved.
See also, 20 C.F.R. §§ 718.204(c)(5) & 718.305(b).


                                  8
Labor, Benefits Review Bd., 853 F.2d 197, 204 (3d Cir. 1988),

citing 30 U.S.C. § 923(b),
          Where there is no medical or other relevant
     evidence in the case of a deceased miner, such
     affidavits . . . shall be considered to be sufficient
     to establish that the miner was totally disabled due to
     pneumoconiosis or that his or her death was due to
     pneumoconiosis.

     The provisions regulating the use of lay evidence in pre-

1982 cases address the difficulty of establishing an otherwise

valid claim because of the lack of medical evidence, resulting

from lost, destroyed, or incomplete doctor and hospital records

or other medical evidence. See Hillibush, 853 F.2d at 204.     Mrs.

Keating faced this precise difficulty, and three ALJ's and the

Board on three occasions used it against her to deny her claim.

     It is true that based on ALJ 1's finding of fewer than ten

years of coal mine employment, Mrs. Keating is not entitled to

the interim presumption of 20 C.F.R. § 727.203(a).0   Nonetheless,

ALJ 1 erred when he ruled that Mrs. Keating could not establish

her claim on lay evidence alone if her husband had worked fewer

than ten years in the coal mines.
     On modification petitions, ALJ 2, ALJ 3, and the Board twice

on appeal, totally ignored Mrs. Keating's argument that ALJ 1

made a mistake of the ultimate fact -- that she was not entitled

to benefits.   The ALJs and the Board incorrectly ruled that the

evidence could not be reconsidered.

      Section 725.310, 20 C.F.R., provides in pertinent part:

0
Keating concedes that because she did not challenge the
calculation before the Board the third time, she waived argument
that she is entitled to the interim presumption based on ten
years of coal mine employment.


                                9
         (a) Upon his or her own initiative, or upon the
       request of any party on grounds of a change in
       conditions or because of a mistake in a determination
       of fact, the deputy commissioner may, at any time
       before one year from the date of the last payment of
       benefits, or at any time before one year after the
       denial of a claim, reconsider the terms of an award or
       denial of benefits.
         (b) . . . Additional evidence may be submitted by any
       party or requested by the deputy commissioner . . . .

20 C.F.R. § 725.310 (a) & (b).

       The Director interprets the modification regulation as

allowing an ALJ to reconsider the evidence in determining whether

there was a mistake of fact, even the ultimate fact of

entitlement.    This is consistent with the modification

regulation.    Moreover, O'Keeffe v. AeroJet-General Shipyards,
Inc., 404 U.S. 254, 92 S. Ct. 405 (1971), establishes that we

should broadly construe the modification provision.     In O'Keeffe,

the Court interpreted the language from the Longshoremen's and

Harbor Workers' Compensation Act, 33 U.S.C. § 922, which is

incorporated into the Black Lung Benefits Act by 30 U.S.C.

§932(a), and implemented by 20 C.F.R. § 725.310.    It found that

on its face the modification provision permits a reopening of the

case with no limitation on particular factual errors.      The plain

language allows the deputy commissioner "broad discretion to

correct mistakes of fact, whether demonstrated by wholly new

evidence, cumulative evidence, or merely further reflection on

the evidence initially submitted." 404 U.S. at 256, 92 S. Ct. at

407.

       In Jessee v. Director, OWCP, 5 F.3d 723, 725 (4th Cir.

1993), interpreting 20 C.F.R. § 718.310, the court stated



                                 10
     a claimant may simply allege that the ultimate
     fact--disability due to pneumoconiosis--was mistakenly
     decided, and the [ALJ] may, if he so chooses, modify
     the final order on the claim. There is no need for a
     smoking-gun factual error, changed conditions, or
     startling new evidence.

Accord, Consolidation Coal Co. v. Worrell, 27 F.3d 227, 230 (6th

Cir. 1994).

     We agree with the Director that the regulation empowers an

ALJ to make a de novo review of factual determinations on a

modification petition. As the Director recognizes,
     [a]t a minimum, the [ALJ] must review all evidence of
     record -- any new evidence submitted in support of
     modification, as well as the evidence previously of
     record -- and "further reflect" on whether any mistakes
     [of] fact were made in the previous adjudication of the
     case.

     Mrs. Keating argues, and the Director agrees, that she was

entitled to have an ALJ properly determine her request for

modification.   ALJ 3 refused to consider her arguments, and

contrary to O'Keeffe's instruction, protested that she was not

entitled to have the evidence "reconsidered" on petition for

modification.   ALJ 3 erred by refusing to render de novo factual

findings based on the lay evidence, and the Board erred by
affirming on appeal.

                               III.

     Mrs. Keating requests that instead of remanding for yet

another hearing, we simply direct an award of benefits to her on

the record.   We have done so in similar cases in which the result

is foreordained, and will do so here.   In Sulyma v. Director,

OWCP, 827 F.2d 922 (3d Cir. 1987), the issue was the medical

evidence's sufficiency to rebut the presumption of total



                                11
disability resulting from pneumoconiosis.   We reversed the order

of the Board and remanded the cause for an award of benefits,

noting that case's protracted history.   In Kline, a case that had

gone on for nineteen years, we likewise awarded benefits after

concluding that the record established the claimant's entitlement

to benefits.

     We found remand unnecessary in Kowalchick v. Director, OWCP,

893 F.2d 615 (3d Cir. 1990), after we concluded that the evidence

could only support a finding that the claimant had established

the presumption of disability under 20 C.F.R. § 727.203(a)(1),

stating "this is a case where the record is so clear that under

the correct standard the result is foreordained." 893 F.2d at 621

(internal quotations omitted).   We found that "no purpose would

be served in remanding [the] case ... and we therefore direct[ed]

that benefits be awarded from the appropriate commencement date."

Id.at 624.

     Recently, in Bethenergy Mines Inc. v. Director, OWCP, 39

F.3d 458 (3d Cir. 1994), the Board reversed an ALJ's denial of

benefits.  Upholding the Board's decision, we commented:
          While the Board could have remanded the matter, we
     hardly can fault it for bringing these protracted
     proceedings to a close. Indeed, we followed a similar
     course in Sulyma v. Director, OWCP, 827 F.2d 922, 924
     (3d Cir. 1987) . . . . [W]e would not remand the case.
     Rather, "in consideration of the age of" the case, we
     relied on our own view of the record and concluded that
     the presumption had not been rebutted.

39 F.3d at 464.

     We will follow the wise counsel of those cases.   This case

has gone on far too long.   Therefore, we will review the record



                                 12
to determine if Mrs. Keating is entitled on this record to

survivor benefits.

                                IV.

     Although the Director concedes the credibility of the

petitioner's witnesses, and the record shows no contrary

evidence, the Director nonetheless maintains that the lay

witnesses did not establish that John Keating at the time of his

death suffered total disability resulting from pneumoconiosis

from coal mine employment.   The Director acknowledges what the

law provides:   that lay witnesses alone in pre-1982 cases may be

sufficient to establish Mrs. Keating's claim, but suggests

inferences from the lay evidence other than total disability or

death from pneumoconiosis.   Notably, however, he fails to

articulate just what those contrary inferences might be.     Indeed,

we can find none.

     Arguing against an outright award of benefits, the Director

characterizes the evidence as merely relating the miner's

symptoms and not establishing with specificity the physical

requirements of the miner's usual coal mine work.   He questions

whether the evidence of record suffices to support the required

finding that the miner's condition prevented him from performing

his usual coal mine work.0   We respond simply by noting that

0
Section 718.204(b), 20 C.F.R., provides:

       (b)Total disability defined . . . . [A] miner shall
     be considered totally disabled if pneumoconiosis as
     defined in section 718.201 prevents or prevented the
     miner:
       (1)From performing his or her usual coal mine work;
     and


                                 13
nothing other than total disability, however, can reasonably be

inferred from the evidence in this record.

     The Director cites to cases from other Courts of Appeals in

which the testimony failed to prove a totally disabling

respiratory impairment.   Those cases are inapposite.   Each case

must be decided on its own facts, and those cases were not

decided on testimony as compelling as that Mrs. Keating offered.

     The Director also argues that there is no evidence linking

the miner's respiratory impairment to his coal mine employment,

such as "that his cough was productive of black material."    But,

of course, there is no check list of required testimony.

Obviously, the type of testimony considered sufficient would have

to be short of medical testimony, otherwise lay testimony alone

could never suffice.

     Mrs. Keating can establish total disability resulting from

pneumoconiosis by her affidavit or equivalent sworn testimony

alone.   Nonetheless, in addition to her sworn testimony, Mrs.

Keating submitted the sworn testimony and affidavits of

individuals familiar with the miner's condition, as provided for

by 20 C.F.R. § 718.305(b),0 and submitted the death certificate

indicating anthracosilicosis.0


        (2)From engaging in gainful employment in the
      immediate area of his or her residence requiring the
      skills or abilities comparable to those of any
      employment in a mine or mines in which he or she
      previously engaged with some regularity over a
      substantial period of time.
0
 Section 718.305(b), 20 C.F.R., applies to pre-1982 cases and
provides:



                                 14
     This evidence establishes that at the time of his death, the

miner was not able to perform simple tasks, such as climbing

stairs, because of his difficulty breathing.   Most of the

testimony involved personal observations of five individuals that

the deceased had extreme difficulty breathing and a significant

lack of energy.   The evidence also documented his work in the

coal mines for almost ten years, his repeated exposure to black

coal dust, his medical treatment for his lungs during the last

five years of his life, his inability to work which he attributed

to his coal mine employment, and the presence of

anthracosilicosis.   Beyond question, Mrs. Keating established a

record showing that the deceased suffered from pneumoconiosis

arising from coal mine employment as required under the Act.

     We conclude that Mrs. Keating is entitled to benefits

because the Director concedes the lay evidence's credibility, and

there is no contrary evidence.   At the time of John Keating's

death, he was totally disabled as a result of pneumoconiosis from

coal mine employment.   In light of the liberal policies behind

the Act and the foregoing, Mrs. Keating is entitled to benefits.

                                 V.



     In the case of a deceased miner, where there is no
     medical or other relevant evidence, affidavits of
     persons having knowledge of the miner's condition shall
     be considered to be sufficient to establish the
     existence of a totally disabling respiratory or
     pulmonary impairment for purposes of this section.

(Emphasis added).
0
 The definition of pneumoconiosis includes anthracosilicosis. 20
C.F.R. §§ 718.201 & 727.202.

                                 15
     Accordingly, we will grant the petition for review, reverse

the Benefits Review Board and remand the cause for the limited

purpose of awarding benefits to Mrs. Keating from August 1978.




                               16
