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Dalton v. Office of Workers' Compensation Programs

United States Court of Appeals, Seventh Circuit

December 20, 2013

Michael DALTON, et al., Petitioners-Appellants,
OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Frontier-Kemper Constructors, Inc., Respondents-Appellees.

Argued Sept. 12, 2013.

Page 780

Anne M. Davis, Attorney, Johnson, Jones, Snelling, Gilbert & Davis, Chicago, IL, for Petitioners-Appellants.

Sean G. Bajkowski, Attorney, Department of Labor, Black Lung and Longshore Legal Services Division, Rita A. Roppolo, Attorney, Department of Labor, Office of the Solicitor, Washington, DC, Mary Lou Smith, Attorney, Howe, Anderson & Steyer, Washington, DC, for Respondents-Appellees.

Before WOOD, Chief Judge, and MANION and TINDER, Circuit Judges.

WOOD, Chief Judge.

For almost 15 years William Dalton and, after his death eight years into the proceedings, his survivors have been seeking benefits under the Black Lung Benefits Act (the Act), 30 U.S.C. §§ 901-45. They may have thought that their quest was almost over when, in August 2011, an Administrative Law Judge (ALJ) ruled in favor of Mr. Dalton's children in all respects. But they would have been wrong. On appeal to the Department of Labor's Benefits Review Board (the Board), the children (Michael Dalton, Sandi Collins, Kathy Moudy, and Joyce Gillihan, referred to here as " the Children" ) won some points but lost on the critical issue of the onset date of their father's disease— and thus the date on which their benefits would commence.

The employer, respondent Frontier-Kemper Constructors, Inc. (Frontier), has not filed a petition for review of the Board's decision, but the Children have. They challenge only the Board's decision to modify, in a way unfavorable to them, the date on which the benefits began. In a back-door way, Frontier attacks the Board's decision to permit the Children to be substituted for Mr. Dalton as parties; it argues that they lack standing because (it says) they are not real parties in interest under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 921(c), as incorporated by the Act, 30 U.S.C. § 932(a). We find no merit to Frontier's position. On the central question of onset date, we conclude that substantial evidence supported the ALJ's finding that August 1991 marked the time of onset for Mr. Dalton's total disability on account of pneumoconiosis. We therefore grant the Children's petition for review and remand this case to the Board for reinstatement of the award of benefits using August 1991 as the date by which the claimant's total disability began, and thus the date for the commencement of benefits.


Mr. Dalton worked in coal mine construction jobs for at least 22 years, from

Page 781

1957 to August 1991. He worked on both conventional and " raise-bored" shafts, both of which involve cutting through rock and coal. Through affidavits, Mr. Dalton confirmed that he was exposed to substantial amounts of coal and rock dust throughout his employment. The last 16 years of his employment were at Frontier. His work was arduous and over time he developed trouble breathing. In August 1991 he quit his job because of his difficulty breathing, and he was never employed again.

Mr. Dalton filed a claim for benefits under the Act on June 1, 1999. Frontier opposed the claim and the District Director of the Office of Workers' Compensation proposed a denial in February 2000. Upon Mr. Dalton's request, the case was transferred to the Office of the Administrative Law Judges and submitted on the record without a hearing. On October 14, 2003, an ALJ awarded benefits, finding that Mr. Dalton was a " miner" for statutory purposes and that Frontier was the " responsible operator." After weighing the medical evidence, the ALJ found that Mr. Dalton had established clinical pneumoconiosis, based on the opinions of two pulmonary experts, Drs. Cohen and Dias. The ALJ rejected the contradictory opinion of Frontier's expert, Dr. Selby, as " unreasoned." The one problem, from Mr. Dalton's standpoint, was that the ALJ ruled that he could not determine the date of onset of total disability on account of pneumoconiosis. That meant, pursuant to 20 C.F.R. § 725.503(b), that Mr. Dalton's benefits began in June 1999, the month and year in which he filed his claim.

Frontier appealed. Although the Board accepted the ALJ's evaluations of the three experts, it vacated the ALJ's finding that Mr. Dalton had established clinical pneumoconiosis, finding that the ALJ had not properly evaluated the x-rays and CT scans in the record. On remand, in an opinion issued on April 3, 2006, the ALJ again awarded benefits beginning in June 1999. Frontier again appealed. On April 27, 2007, the Board affirmed the ALJ's findings in part but vacated his finding that Mr. Dalton had established total disability on account of " legal pneumoconiosis." The case was once again remanded.

By this time, the original ALJ had retired, and so the case was reassigned to a new ALJ, who awarded benefits on Au gust 29, 2008. The new ALJ reweighed the evidence and found that Mr. Dalton had established both clinical and legal pneumoconiosis and that his total respiratory disability was the result of his " legal" pneumoconiosis— in other words, his chronic obstructive pulmonary disease (COPD) was caused in part by his exposure to coal-mine dust. Like the earlier ALJ, the new ALJ credited Mr. Dalton's experts and discredited ...

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