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Dawe v. Old Ben Coal Co.

*fn*: February 4, 1985.

CHARLES M. DAWE, PETITIONER,
v.
OLD BEN COAL COMPANY AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS



Petition for Review of an Order of the Benefits Review Board, United States Department of Labor.

Author: Flaum

BEFORE CUMMINGS, Chief Judge, CUDAHY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Petitioner Charles M. Dawe appeals from an order of the Benefits Review Board dismissing his appeal of an unfavorable decision on his application for federal black lung disability benefits. For the reasons stated below, we must affirm dismissal by the Board. 2

I.

On June 12, 1978, petitioner applied for black lung benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. He was initially determined to be eligible for benefits on August 11, 1980. Respondent Old Ben Coal Company, Dawe's former employer, requested a de novo hearing before an Administrative Law Judge (ALJ). The ALJ determined that petitioner was ineligible for benefits in a Decision and Order dated October 5, 1983. Petitioner filed a notice of appeal, a request to extend time for filing notice of appeal, and an attorney's affidavit with the Benefits Review Board on November 8, 1983, thirty-four days after the ALJ's decision was issued. The Board ruled, on January 25, 1984, that it was without jurisdiction to hear the appeal because the notice was not timely filed. Petitioner now seeks review of that decision.

Black lung benefit applications are governed by the procedural provisions of the Longshoremen's and Harbor Workers' Compensation Act, 30 U.S.C. § 932(a) incorporating selected provision of Title 33. Review of an ALJ's decision by the Benefits Review Board is authorized by 33 U.S.C. § 921(b). Unless application for review is made to the Board within thirty days after a compensation order is filed with the Deputy Commissioner, Department of Labor, that order becomes final. 33 U.S.C. § 921(a). Unless application for review is made to the Board within thirty days after a compensation order is filed with the Deputy Commissioner, Department of Labor, that order becomes final. 33 U.S.C § 921(a). The order of the ALJ is deemed to be filed with the Deputy Commissioner on the date that it is issued, 20 C.F.R. § 725.478, and, in this case, the ALJ's Decision and Order contained a statement that an appeal could be filed "within 30 days from the date of this Decision." Petitioner's appeal was filed four days after the deadline.

In the attorney's affidavit, submitted with the notice of appeal, petitioner's attorney stated that the completed notice of appeal was finalized on October 26th, nine days before the deadline, but that his secretary had not carried out his instructions to forward it immediately to the Benefits Review Board. The attorney learned that it had not been sent on November 8th and immediately filed the papers listed above. Petitioner argues that the Board has the power to accept an appeal which is not timely filed due to clerical error and that the instant case is a proper one for the exercise of that power by the Board.

To support these arguments, petitioner cites the case of Morris v. Clinchfield Coal Company, 3 BLR 1-49 (1981), in which the Board accepted an appeal filed by an employer approximately four months after the ALJ's decision was issued. Morris, however, is distinguishable from the instant case, as petitioner acknowledges. There, copies of the ALJ's decision were not mailed to the parties, due to agency clerical error, until three months after the decision was issued. Neither the claimant nor his former employer had any notice that a decision had been rendered until they received the delayed copies. In that situation, the Board held that the order did not become final until thirty days after "completion of the steps required to make it effective: 1) filing in the Office of the Deputy Commissioner, and 2) mailing to the parties." There is no dispute in this case that both of those steps were taken on October 5, 1983.

With the arguable exception of Morris, petitioner's position receives no support from the relevant statute, regulations or case law. The statute, as noted, makes the compensation order final unless an appeal is filed within thirty days. Regulations state unequivocally that failure to file an appeal within the time allotted "shall foreclose all rights to review by the Board . . . Any untimely appeal will be summarily dismissed by the Board for lack of jurisdiction." 20 C.F.R. § 802.205(c). The thirty-day requirement has been strictly adhered to by this court, even when the ALJ's order did not contain the information about claimant's appeal rights. Bennett v. Director, Office of Workers' Compensation Programs, 717 F.2d 1167 (7th Cir. 1983). In Bennett, we stated,

'Excusable neglect' [as a] ground for extending the time limits for an appeal does not apply in this case of administrative proceedings governed by 33 U.S.C. § 921 . . . No constitutional, statutory or other au- thority supports the enlargement of [the applicable] time limits.

Id. at 1170.

II.

For the reasons set out above, this court is without authority to alter the ruling of the Board and to restore to petitioner the appeal rights that he lost by his untimely filing. We can, however, note our ...


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