Petition for Review of an Order of the Benefits Review Board Case No. 84-BLA-1655, BRB No. 86-1645 BLA, OWCP No. 329-12-5994. Previously Reported as Unpublished Opinion at:,.
Easterbrook, Ripple, and Manion, Circuit Judges.
Black lung victim and former coal miner Joseph Zettler is totally disabled from pneumoconiosis. In 1986 the Administrative Law Judge (ALJ) found Zettler eligible for Black Lung Disability Trust Fund (Disability Fund) benefits retroactive to January 1, 1974. But in 1988 the U.S. Department of Labor Benefits Review Board (Review Board) modified the benefits award to establish the date from which benefits should be payable as the month Zettler had elected Reform Act review (April 1978).
The two questions presented on appeal are: (1) did the Director of the Officer of Workers' Compensation Programs (Director) waive any challenge relating to the onset date of Zettler's disability by failing to raise this issue before filing his motion for reconsideration after the ALJ's original decision?; and (2) was there substantial evidence supporting the ALJ's decision that Zettler had become totally disabled by pneumoconiosis before January 1974? Because this court answers the second question in the affirmative, we reverse.
Claimant-petitioner Joseph Zettler last worked as a coal miner in 1953, as a cutting machine operator for the Old Ben Coal Company. Zettler had at least twelve years of qualifying coal mine employment. He labored sporadically as a miner for several companies in the years before 1953, always underground. Zettler became a farmer after leaving mining, but abandoned farming during 1973 because he could no longer do farm work. Zettler has been short of breath since the time he worked in the mines. Zettler did not smoke. On July 13, 1971, Zettler filed a claim for benefits under the Black Lung Benefits Act with the Social Security Administration, which was denied.
When both the Social Security Administration and subsequently the Department of Labor denied his claim, Zettler requested a formal hearing which was held on February 6, 1986. In his March 27, 1986 Order, the ALJ found that Zettler first had become totally disabled in 1973, when he had been forced to abandon farming. Because benefits are not payable for periods before January 1, 1974, under 20 C.F.R. § 727.302(b), the ALJ awarded Zettler benefits to run from that date (onset date). The ALJ ordered the Disability Fund to pay Zettler's benefits, and his counsel's attorney's fee.
The Director moved for reconsideration of the date of the onset of Zettler's disability. The Director argued that the record fails to establish an onset date of disability, and that consequently benefits could not commence until April 1, 1978, the month during which Zettler elected review of his Social Security claim. The ALJ denied the Director's reconsideration motion and held that the record establishes 1973 as the date of disability onset.
The Director appealed to the Review Board the ALJ's original decision and order, and subsequent denial of reconsideration. On appeal, the Director contended that the ALJ's onset date of January 1, 1974, was unsupported by substantial evidence and not in accordance with law. Because the onset date issue had not been raised before the ALJ, Zettler responded that the Director had waived his right to contest that date. Zettler also contended that his own testimony had constituted substantial evidence supportive of the ALJ's finding of the onset date.
The Review Board decided that Zettler's election date of April 1, 1978, should control the payment of his benefits because the medical evidence had failed to demonstrate the date of total disability. The Review Board concluded that the Director had not waived his right to contest the onset date issue because it was Zettler's burden to produce medical evidence affirmatively establishing the onset date of total disability.
Zettler now petitions this court to reverse the Review Board's decision and to reinstate the ALJ's decision that Zettler has been disabled since January 1, 1974. The first issue before us on appeal from the Review Board is whether the Director waived any issue relating to the onset date of Zettler's disability by failing to raise it before the filing of the Director's motion for reconsideration. The second question of law for our resolution is whether ...