1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-27-1998

Venicassa v. Consol Coal Co

Precedential or Non-Precedential:

Docket 96-3736

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Recommended Citation

"Venicassa v. Consol Coal Co" (1998). 1998 Decisions. Paper 36.

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Filed February 27, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-3736 

ARMANDO VENICASSA, 

 Petitioner 

v. 

CONSOLIDATION COAL COMPANY 

and 

DIRECTOR, OFFICE OF WORKERS' COMPENSATION 

PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, 

 Respondents 

On Petition for Review of an Order of the Benefits 

Review Board, United States Department of Labor 

BRB No. 95-1760 

Argued September 25, 1997 

Before: COWEN, ROTH and LEWIS, Circuit Judges 

(Opinion Filed February 27, 1998) 

 Robert L. Johnson, Esquire (Argued) 

 Paul A. Tershel, Esquire 

 Tershel & Associates 

 55 South Main Street 

 Washington, PA 15301 

 Attorneys for Armando Venicassa 
 J. Davitt McAteer, 

 Acting Solicitor of Labor 

 Donald S. Shire, 

 Associate Solicitor 

 Christian P. Barber, Esquire 

 Jeffrey S. Goldberg, Esquire (Argued) 

 United States Department of Labor 

 200 Constitution Avenue, N.W. 

 Suite N-2605 

 Washington, D.C. 20210 

 Attorneys for Director, Office of 

 Workers' Compensation Programs, 

 United States Department of Labor 

 William S. Mattingly, Esquire 

 (Argued) 

 Jackson & Kelly 

 600 Hampton Center, Suite B 

 P.O. Box 619 

 Morgantown, WV 26507 

 Attorney for Consolidated Coal 

 Company 

OPINION OF THE COURT 

ROTH, Circuit Judge: 

Armando Venicassa has filed a Petition for Review from 

the decision of the Benefits Review Board ("Board"), 

affirming the denial by the Administrative Law Judge 

("ALJ") of Venicassa's claim for black lung benefits under 

the Black Lung Benefits Act, 30 U.S.C. S 901, et. seq. (the 

"Act"). In an earlier hearing, the ALJ had dismissed United 

States Steel Corporation, the responsible coal mine

operator, designated by the Office of Worker's 

Compensation Programs ("OWCP"), and had awarded 

benefits to Venicassa, to be paid by the Black Lung

Disability Trust Fund ("Trust Fund"). The Director of the 

OWCP appealed this decision to the Board. The Board then 

remanded Venicassa's claim to the OWCP to permit the 

OWCP to identify a second responsible operator to pay 

 2 
benefits. We must decide whether, after the award on the 

merits to Venicassa, the Board could vacate that award so 

that the ALJ might designate a second responsible operator 

and begin the process all over again. 

For the reasons we discuss below, we conclude that the 

Board erred when it remanded this case for designation of 

a second responsible operator. We will, therefore, grant the 

petition for review, vacate the decision of the Board, and 

remand this case to the Board to reinstate the ALJ's ruling, 

granting Venicassa's claim for benefits and ordering the 

Trust Fund to pay them.1 

We have appellate jurisdiction in this matter pursuant to 

the Longshoreman's and Harbor Workers' Compensation

Act, 33 U.S.C. S 902, made applicable to Black Lung

Benefits cases by 30 U.S.C. S 932(a). The decision of the 

Benefits Review Board is a final order under Section 21(c) 

of the Longshoreman's and Harbor Workers' Compensation 

Act, 33 U.S.C. S 921(c) as incorporated by section 422(a) of 

the Black Lung Benefits Act, 30 U.S.C. S 932(a). 

FACTS AND PROCEDURAL BACKGROUND 

This case comes to us with a lengthy procedural history, 

due in large part to the long delay by the OWCP in 

processing Venicassa's claim and to the acknowledged error 

by the OWCP in designating the responsible coal mine 

operator.2 

_________________________________________________________________ 

1. We are also asked to decide whether the ALJ's determination at a 

second hearing, denying benefits, was supported by substantial 

evidence. Venicassa submits that the denial of benefits by the ALJ on 

remand was irrational because the ALJ relied on the same medical 

evidence that he had relied on to make the initial award of benefits. 

Because of our decision on the second designation issue, we do not need 

to reach this question. 

2. Unfortunately, the OWCP's failure to designate the proper responsible 

operator at the outset has exacerbated a problem all too familiar to us. 

We have confronted a disturbing record of delay in processing claims for 

black lung benefits in prior cases. See Kowalchick v. Director, OWCP, 893 

F.2d 615 (3d Cir. 1990) (Benefits awarded 17 years after the initial claim 

was filed); Lango v. Director, OWCP, 104 F.3d 573 (3d Cir. 1997) (noting 

long delay in processing claim for benefits). 

 3 
The petitioner in this case, Armando Venicassa, worked 

in and around coal mining operations for 43 years before 

he retired in 1985. In 1986, he filed a claim with the OWCP 

for benefits under the Black Lung Benefits Act. Under the 

Act, benefits are awardable to persons who are totally 

disabled due to pneumoconiosis, a disease known as "black 

lung." The OWCP processed Venicassa's claim for benefits 

with the information he supplied. Venicassa indicated 

clearly on his claim form that his most recent employer was 

Consolidation Coal Company, for whom he worked from

January 1984 until his retirement in August 1985. 

However, despite being supplied with accurate information, 

the OWCP erroneously designated United States Steel

Corporation ("U.S. Steel") as the responsible operator.3 

Venicassa's claim was then referred to the Department of 

Labor's Office of Administrative Law Judges for a formal 

hearing. In February 1987, the Director of the OWCP

moved to remand the case for identification of another 

responsible operator. This motion to remand came 13

months after Venicassa had provided the OWCP with the 

information to identify the proper responsible operator. In 

August 1988, prior to the formal hearing on Venicassa's 

claim, the ALJ denied the motion to remand.4 Citing the 

Benefits Review Board decision in Crabtree v. Bethlehem 

Steel Corp.,7 BLR 1-354 (1984), the ALJ held that due 

process concerns dictated that the hearing go forward and 

that, if U.S. Steel was not the responsible operator, it would 

be dismissed and the Director of the OWCP substituted to 

defend the claim. At the hearing, Venicassa testified that 

U.S. Steel had been improperly designated as the 

responsible operator. The ALJ then dismissed U.S. Steel 

and substituted the Director. 

_________________________________________________________________ 

3. Venicassa indicated on his claim form that he was employed by U.S. 

Steel from 1942 until January 1984. The regulations define "responsible 

operator" as "the operator or other employer with which the miner had 

the most recent periods of cumulative employment of not less than one 

(1) year..." 20 C.F.R. S 725.493 (a)(1). 

4. The record reflects that the ALJ, who ruled on the remand motion in 

August 1988, did not receive the case until May or June of that year 

even though the case was referred to the Office of Administrative Law 

Judges in September of the previous year. Appendix 56-57. 

 4 
To succeed on a claim for black lung benefits, a claimant 

must establish that he suffers from pneumoconiosis and, 

as a result, is totally disabled. In addition, the claimant 

must establish that the pneumoconiosis is the result of coal 

mining. Under the Act, pneumoconiosis may be established 

by x-ray evidence or by a finding of a physician that the 

miner suffers from the disease. 30 U.S.C. S 902(f)(1) (1986); 

20 C.F.R. S 718.202. 

At the hearing, the ALJ concluded that Venicassa's chest 

x-rays did not establish pneumoconiosis. However, the ALJ 

also heard five medical experts, four of whom diagnosed 

some form of lung disease related to coal dust exposure. 

The one physician, who did not find lung disease related to 

coal exposure, did so without providing his reasoning. The 

ALJ, therefore, ascribed little weight to that opinion. The 

ALJ concluded that the weight of medical opinion 

established the finding of pneumoconiosis. Since Venicassa 

had at least 10 years of coal mining employment, the ALJ 

found that Venicassa was entitled to the statutory 

presumption that his pneumoconiosis arose as a result of 

coal mine employment. 30 U.S.C. S 921(c) (1986). The ALJ 

credited Venicassa with 43 years of coal mine employment 

and found evidence sufficient to establish the existence of 

pneumoconiosis due to that employment. As a result, on 

June 23, 1989, the ALJ awarded benefits to Venicassa. 

The Director appealed this decision to the Benefits

Review Board. In its review of the ALJ's decision, the Board 

did not address the merits of the entitlement to benefits. 

Instead, it vacated the award and remanded the case to the 

deputy commissioner for determination of another 

responsible operator. The Board found it significant that 

the Director had filed the Motion to Remand before a formal 

hearing had been held. For this reason, the Board held that 

the due process concerns of relitigating the case were less 

compelling than those facing the Crabtree Court. 

On remand, the OWCP designated Consolidation Coal as 

the responsible operator. Venicassa's benefits were then 

stopped. In December 1994, a second hearing on 

Venicassa's eligibility for benefits was held before the same 

ALJ. Consolidation Coal submitted evidence in addition to 

that presented at the first hearing. Venicassa submitted 

 5 
only the record of the medical evidence from thefirst 

hearing. In addition, Venicassa testified about the

deterioration of his health during the more than five years 

since the initial award of benefits. The physicians, who had 

presented medical testimony at the first hearing regarding 

Venicassa's respiratory problems, did not testify in person 

at the second hearing. 

At the conclusion of the second hearing, the ALJ denied 

Venicassa's claim for benefits. Venicassa appealed to the 

Benefits Review Board on June 23, 1995. On October 22, 

1996, the Board issued a final decision, affirming the 

decision of the ALJ. Venicassa then timely filed his petition 

for review with this Court. 

ANALYSIS 

We review decisions of the Benefits Review Board and of 

the ALJ for errors of law. Lango v. Director, OWCP, 104 F.3d 

573, 575 (3d Cir. 1997); Kowalchick v. Director, OWCP, 893 

F.2d 615, 619 (3d Cir. 1990). 

The petitioner contends that the Board's reversal of the 

award of benefits and its decision to remand this case for 

the designation of a second responsible operator violated 

due process and subjected him to substantial prejudice. He 

argues that to make him relitigate a claim, on which he has 

already won an award of benefits on the merits, violates 

due process. He further contends that, under the rationale 

of the Benefits Review Board in Crabtree, the efficient 

administration of the Black Lung Benefits Act dictates that 

the case should not have been remanded and that the

Trust Fund should be reinstated as payor. 

The Director argues that, although a mistake occurred in 

the designation of U.S. Steel as the responsible operator at 

the outset, the Director attempted to correct the mistake 

with the motion to remand for designation of another 

responsible operator. The Director further contends that the 

ALJ's denial of that motion was in error and that the Trust 

Fund is not the appropriate payor because ultimately 

Consolidation Coal was identified as the responsible 

operator. 

 6 
We begin our review with an examination of the 

regulations, under the Black Lung Benefits Act, which 

govern the designation of a responsible operator. These 

regulations provide: 

 At any time during the processing of a claim under this 

 part, after sufficient evidence has been made available 

 to the deputy commissioner, the deputy commissioner 

 may identify a coal mine operator...which may be liable 

 for the payment of the claim .... Such identification 

 shall be made as soon after the filing of the claim as 

 the evidence obtained permits .... 

20 C.F.R. S 725.412(a). The responsible operator is defined 

as "the operator or other employer with which the 

individual had the most recent periods of cumulative 

employment of not less than one (1) year." 20 C.F.R. 

S 725.493(a)(1). 

It is uncontested that, as of January 1986 when 

Venicassa first filed his claim, the OWCP had all the 

evidence necessary to designate the proper responsible 

operator. However, the Director argues that, under the Act 

and the applicable regulations, a coal mine operator may be 

designated as responsible operator for the purposes of 

defending a claim for Black Lung Benefits "at any time" 

during the processing of the claim. The Director claims, 

therefore, that the ALJ improperly refused to remand the 

case for the designation of a second responsible operator. 

The regulations also state, however, that the 

identification of the responsible operator shall be made "as 

soon after the filing of the claim as the evidence obtained 

permits." For this reason, Venicassa argues that, since from 

the outset the Director had enough information to name the 

proper responsible operator, Venicassa should not be 

penalized for the Director's failure to do so. Venicassa 

contends that, because the OWCP did not make a prompt 

resolution of the responsible operator issue, the ALJ's 

decision to go forward with the hearing on the merits was 

appropriate; to proceed otherwise would have subjected 

Venicassa to further substantial delay in the processing of 

his claim. 

 7 
When the ALJ considered the Director's motion to 

remand the case for designation of another responsible 

operator, he relied on the decision of the Benefits Review 

Board in Crabtree. In Crabtree, the Board dismissed

Bethlehem Steel as the responsible operator. Instead, 

however, of remanding the case for identification of another 

responsible operator, the Board held that the Trust Fund 

would be liable for benefits because the delay involved in 

relitigating the claim would offend due process. In Crabtree, 

the Board concluded that "the Department of Labor is not 

entitled to a second opportunity to identify another putative 

responsible operator." Id. at 1-356-357. 

 Remand for reconsideration of the operator issue 

 would be tantamount to relitigating the claim. If the 

 Department identifies another responsible operator, 

 then that operator is entitled to contest the claim, 

 develop its own evidence, request a hearing, etc., until 

 it has exhausted the full gamut of available procedures 

 for adjudicating entitlement. The fact that claimant has 

 established entitlement against employer does not bind 

 any other operator(s) who were not a party to the 

 proceedings. This piecemeal approach encourages two 

 undesirable results. First, a claimant who has 

 established entitlement in the first round of 

 proceedings may lose his award in a later round 

 against another operator. A first finding of entitlement, 

 even though fully developed and litigated, can be 

 defeated in subsequent proceedings by a different 

 operator, and not always on the merits. Second, 

 piecemeal litigation obviously is not compatible with 

 the efficient administration of the Act and expeditious 

 processing of claims. 

 In view of the aforementioned considerations, the 

 Department must resolve the operator issue in a 

 preliminary proceeding, see 20 C.F.R. S725.412(d), 

 and/or proceed against all putative responsible 

 operators at every stage of the claims adjudication. 

 Even a separate preliminary proceeding on the operator 

 issue alone is more desirable than fully litigating the 

 claim against each operator individually. ... The Trust 

 Fund therefore must assume liability in the absence of 

 any other potentially liable operator. 

 8 
Id. at 1-357. 

The Director contends, however, that Crabtree should not 

have prevented the OWCP from identifying Consolidation 

Coal as the responsible operator even after the ALJ had 

awarded benefits payable by the Trust Fund. The Director 

urges that the critical distinction between Venicassa's case 

and the Crabtree decision is that here a motion to remand 

was filed before the hearing on the merits. Therefore, 

Crabtree does not apply. The Director contends that

remand, at the time that the motion was filed, would have 

been appropriate under Crabtree because remand would 

have been prior to litigation of the claim; Crabtree held only 

that the Director could not wait until after the ALJ had 

awarded benefits against the Trust Fund before seeking to 

identify a second responsible operator. Because the motion 

to remand was filed 18 months before the hearing on the 

merits and was denied prior to the hearing, the Director 

claims he did not have an opportunity to ascertain the 

correct responsible operator.5 

_________________________________________________________________ 

5. In making this argument, the Director also relies on Director, OWCP v. 

Trace Fork Coal Company, 67 F.3d 503 (4th Cir. 1995). However, Trace 

Fork does not in fact support the Director's position. In Trace Fork, the 

ALJ dismissed the coal company as responsible operator, refusing to 

remand the case for the designation of another responsible operator, and 

then named the Trust Fund as payor. The ALJ awarded benefits and the 

Director appealed the ALJ's finding that the Trust Fund was liable. The 

Benefits Review Board affirmed the ALJ's ruling. The Fourth Circuit held 

that dismissal of Trace Fork as responsible operator was proper and 

affirmed the refusal to remand for the naming of another responsible 

operator. The Board and the Fourth Circuit based their decisions on 

Crabtree and on the holding in that case that the Director must resolve 

the responsible operator issue in a preliminary proceeding or else 

proceed against all potential operators at each stage of the adjudication 

in order to avoid piecemeal litigation and due process concerns. The 

Trace Fork court found that to remand the case would allow a second 

operator to challenge the claimant's entitlement to benefits. The court 

concluded, "We are unwilling to potentially upset the finding that 

[claimant] is entitled to benefits, a matter already fully litigated on 

the 

merits. The Director had full opportunity, and even a motion, to 

ascertain the responsible operator as a preliminary matter, but simply 

refused." Trace Fork, 67 F.3d at 508. 

 9 
In resolving the motion to remand in the instant case, the 

ALJ concluded that the "Director blew it" in failing to name 

the proper responsible operator. (Appendix 56). For this 

reason, the ALJ dismissed U.S. Steel and substituted the 

Trust Fund as the responsible party. The ALJ's decision 

places the incentives in the proper place -- the Director 

should have gotten it right the first time. That would not 

have been an onerous task because, from the outset, the 

OWCP had in its possession all the information necessary 

to name the proper responsible operator. 

The Director, however, argues that the plain language of 

the regulations allows for the designation of a responsible 

operator "at any time" during the processing of the claim. 

Therefore the OWCP should be allowed to rectify its

mistake. The Director relies on the Sixth Circuit's decision 

in Director, O.W.C.P. v. Oglebay Norton Company, 877 F.2d 

1300 (6th Cir. 1989). 

Although we have not decided a case involving the failure 

of the OWCP to correctly name the responsible operator in 

the first instance, Oglebay addresses such a situation in a 

black lung, widow's benefits case. In Oglebay, the court 

considered the identification of a responsible operator 

nearly ten years after the claim was filed. The Director 

appealed a decision of the Benefits Review Board which had 

dismissed the company as responsible operator. The Sixth 

Circuit held that the identification of the company as 

"responsible operator" nearly ten years after the claim was 

filed was valid and that the transfer of liability to the Fund 

was improper. In reaching this conclusion, the Sixth Circuit 

interpreted the regulation, governing the identification of 

the responsible operator (20 C.F.R. S 725.412(a)). The Court 

noted that the regulation permits identification of the 

responsible operator at any time during the processing of 

the claim. In addition, the Sixth Circuit found the transfer 

of liability to the Trust Fund to be improper when there is 

an affirmative identification of a responsible operator. 

Oglebay, 877 F.2d at 1304. The court reasoned that neither 

the applicable statutes nor regulations indicated that 

identification of the responsible operator should be 

disregarded merely because it was inefficiently reached; the 

operator would not be substantially prejudiced in defending 

the matter on its merits. 

 10 
The Director asks us to disregard Crabtree and follow the 

Sixth Circuit's reasoning in Oglebay. We are not, however, 

bound by Oglebay. Moreover, the instant case is easily 

distinguishable from Oglebay. First, Oglebay involved a 

dispute between the OWCP and the responsible operator. 

The case before us involves a dispute between the claimant, 

the Director, and the putative responsible operator. Second, 

in Oglebay the ALJ decided to remand the case for 

determination of another responsible operator prior to 

holding a hearing on the merits. In the instant case, the 

decision to remand was made after a formal hearing on the 

merits and after the ALJ had awarded benefits. In other 

words, the Crabtree concerns about due process and 

piecemeal litigation -- relied on by the ALJ in denying the 

motion to remand -- are greater in the instant case than 

were those faced by the court in Oglebay. 

Moreover, there is another important distinction between 

this case and Oglebay. The Oglebay court reasoned that 

inefficient identification of the responsible operator does not 

invalidate that identification. In our case, however, the 

Director had before it all the relevant information necessary 

to designate the proper responsible operator -- but failed to 

do so. The OWCP's failure here is more than mere 

inefficiency. Indeed, this failure penalized Venicassa, who 

had already litigated the case on the merits and won. It also 

penalized Consolidation Coal, which had to litigate a 10 

year old claim. 

The Director contends, however, that, because the motion 

to remand was made prior to litigation of the claim on the 

merits, remand and designation of a responsible operator 

were appropriate and did not raise due process concerns. 

Consolidation Coal argues, on the other hand, that the 

critical issue here is not the timing of the motion to remand 

but the timing of the identification of the responsible 

operator. To resolve this dispute, we must go back to the 

language of the regulation. 

The regulation allows for the designation of a responsible 

operator "at any time." Thus, the Director asserts that, 

upon receiving the motion to remand, the ALJ should have 

allowed the designation of a second responsible operator. 

The Director argues that, while the OWCP clearly erred in 

 11 
failing to identify Consolidation Coal as the responsible 

operator at the outset, the ALJ erred in denying the motion 

to remand the case in order to correct the problem. The 

Director contends that the Act gives the OWCP sole 

responsibility for identifying the responsible operator who 

may be liable for payment of benefits. 20 C.F.R. 

SS 725.410(b), 725.412. The Director relies on the 

regulatory language which provides for designation of a 

responsible operator "at any time during the processing of 

a claim" and contends that a claim is still being "processed" 

even after it is referred to the ALJ for a hearing.

While the regulation clearly states that the designation of 

the responsible operator may be made "at any time," the 

language of the regulation triggers the process by providing 

that the designation be made "after sufficient evidence has 

been made available to the deputy commissioner." The 

regulation then further limits the process by providing that 

the designation "shall be made as soon after thefiling of 

the claim as evidence obtained permits." 20 C.F.R. 

S 725.412(a). The focus of the regulation is clearly on the 

swift and accurate designation of the responsible operator 

so that the claim may be resolved through the presentation 

of evidence to the fact finder by the appropriate parties. 

Because the OWCP did not make a timely designation of 

the proper responsible operator, nor did it even make a 

timely attempt to correct its misdesignation or to add 

Consolidation Coal as a potential responsible operator, we 

conclude that the ALJ at the first hearing correctly 

designated the Trust Fund as the defending party. 6

Moreover, this result is consistent with the purpose 

behind the establishment of the Trust Fund. The Trust 

Fund was established by the Black Lung Benefits Revenue 

Act of 1977 "to provide a more effective means of 

transferring the responsibility for the payment of benefits 

from the Federal government to the coal industry ...." 20 

C.F.R. S 725.490(a). The Black Lung Benefits Revenue Act 

of 1977, (Pub. Law 95-227) (92 Stat. 11) (1978 

_________________________________________________________________ 

6. Contrary to the approach of the petitioner, and to the views expressed 

in the dissent, we do not ground our decision on due process 

considerations. 

 12 
U.S.C.C.A.N.) (codified at 30 U.S.C. S 934a). The fund is 

financed by the coal industry through an excise tax on the 

sale of coal. 26 U.S.C. S 9501. 

The Director argues that the Trust Fund should not be 

liable in this instance because the Trust Fund was created 

to assume liability for benefits in the event that no 

responsible operator could be found. The statute provides 

that the Trust Fund is available for the payment of benefits 

in any case in which the Secretary determines that "there 

is no operator who is required to secure the payment of 

such benefits." 26 U.S.C. S 9501(d)(B).7 

In order to support its argument that the Trust Fund 

should be liable only in the absence of an identifiable 

responsible operator, the Director emphasizes a portion of 

the Act's legislative history which states that Congress 

intended to ensure that individual coal operators, rather 

than the Trust Fund, would be liable for claims.8 The Sixth 

Circuit relied on these statements in holding that, where a 

responsible operator has been identified, the transfer of 

_________________________________________________________________ 

7. The provision reads that the Trust Fund shall be liable for the 

payment of benefits in any case in which the Secretary determines that: 

 (a) the operator liable for the payment of such benefits -- 

 (i) has not commenced payment of such benefits within 30 days 

 after the date of an initial determination of eligibility by the 

 Secretary, or 

 (ii) has not made a payment within 30 days after the payment is 

 due, 

 (b) there is no operator who is required to secure payment of such 

 benefits, ... 

26 U.S.C. S 9501(d) (emphasis added). 

8. "It is further the intention of this section, with respect to claims 

related to which the miner worked on or after January 1, 1970, to 

ensure that individual coal operators rather than the trust fund bear the 

liability for claims arising out of such operator's mines, to the maximum 

extent feasible." S. Rep. 209, 95th Cong., 1st Sess. 9 (1977), reprinted 

in 

House Comm. On Educ. And Labor, 96th Cong., Black Lung Benefits 

Reform Act and Black Lung Benefits Revenue Act of 1977, 612 (Comm. 

Print 1979). See also Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th 

Cir. 1987). 

 13 
liability to the Trust Fund is improper. Oglebay, 877 F.2d 

at 1304. 

However, investigation into the legislative history

indicates that Congress did not contemplate the situation 

before us. Indeed, the Trust Fund's architects were

motivated by a desire to curb the ability of coal mine 

operators to transfer assets in order to sidestep liability as 

responsible operators. 

At the time of the Trust Fund's creation, its drafters were 

cognizant of the structural changes in the coal industry 

which resulted in the consolidation of numerous coal 

companies and the disappearance of others. They were 

particularly conscious of the impact of these changes on 

future claimants and of their effect on the responsibility of 

successor and former operators.9 

 During the last two decades, the coal industry has 

 undergone major structural changes. Of the 50 largest 

 coal companies, 29 have become captive of other 

 industries ...In most instances, these acquisitions 

 transferred intact the ownership of the mines and 

 operations of existing coal producers to the larger and 

 more diversified parent corporations. ... It was 

 originally the intent of Congress that such entities 

 should bear the liability for black lung diseases arising 

 out of employment in their mines ... . 

S. Rep. 209, at 9. 

Thus, while the Act evidences an intent that individual 

coal mine operators, rather than the Trust Fund, assume 

liability for the payment of black lung benefits, the rationale 

behind this determination is the protection of claimants 

_________________________________________________________________ 

9. "When the black lung benefits provisions of the Federal Coal Mine 

Health and Safety Act of 1969 were first enacted, it was the expectation 

of Congress that after the Federally financed portion of the program 

terminated, individual coal mine operators would assume the liability for 

benefits either under an approved state workers' compensation program 

or under Part C of the Federal Act. In order to facilitate assessment of 

liability against coal mine operators, Section 422(I) prohibited the 

avoidance of such liability by coal mine operators through the 

mechanism of a post enactment transfer of assets...." S. Rep. 209 at 8. 

 14 
from the denial of benefits due to the disappearance of any 

responsible operator. Here, because of the failure of the 

OWCP to identify the responsible operator "as soon after 

the filing of the claim as the evidence obtained permits," it 

is the claimant who will suffer unless the Trust Fund 

assumes responsibility for payment of the benefits. This 

result will protect the claimant, which is the purpose of the 

Act. 

CONCLUSION 

The Black Lung Benefits Act was enacted in order to

ensure benefits for coal miners who have been totally 

disabled due to black lung disease as a result of their work 

in coal mines. Despite possessing accurate information 

regarding Venicassa's employment history, the Office of 

Worker's Compensation Programs failed to designate the 

proper responsible operator to defend the claim. As a result 

of this failure, the Benefits Review Board ruled that 

Venicassa had to relitigate his claim. We conclude,

however, that the OWCP's failure to make a timely 

designation of the proper responsible operator should not 

have jeopardized the award of benefits which had been 

made to Venicassa. We will, therefore, grant the petition for 

review, vacate the decision of the Benefit's Review Board, 

and remand this case for reinstatement of the June 23, 

1989, order and award of the Administrative Law Judge. 

 15 
COWEN, Circuit Judge, dissenting. 

Today the majority holds that a district director is not 

authorized, under any circumstances, to correct a mistaken 

responsible operator identification. Because this holding is 

contrary to, inter alia, the Director's reasonable 

interpretation of 20 C.F.R. S 725.412(a) and (c), 

congressional intent, and the Sixth Circuit's decisions in 

Caudill Construction Co. v. Abner, 878 F.2d 179 (6th Cir. 

1989) and Director, OWCP v. Oglebay Norton Co., 877 F.2d 

1300 (6th Cir. 1989), I must respectfully dissent. 

I. 

The standards governing our review of an agency's 

interpretation of its own regulations are well known and not 

in dispute. We owe "substantial deference" to the agency's 

interpretation, which has " `controlling weight unless it is 

plainly erroneous or inconsistent with the regulation.' " 

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 

S. Ct. 2381, 2386 (1994) (quoting Bowles v. Seminole Rock 

& Sand Co., 325 U.S. 410, 414, 65 S. Ct. 1215, 1217

(1945)); see also Sekula v. FDIC, 39 F.3d 448, 453 (3d Cir. 

1994). Absent constitutional or statutory violations, the 

only circumstance in which we do not defer is where "an 

`alternative reading is compelled by the regulations's plain 

language or by other indications of the [agency's] intent at 

the time of the regulation's promulgation.' " Thomas 

Jefferson Univ., 512 U.S. at 512, 114 S. Ct. at 2386-87 

(quoting Gardebring v. Jenkins, 485 U.S. 415, 430, 108 

S. Ct. 1306, 1314 (1988)). "In addition, we give judicial 

deference to the Director, as policymaker, rather than to 

the Board, which is purely an adjudicator." Director, OWCP 

v. Eastern Coal Corp., 54 F.3d 141, 147 (3d Cir. 1995) 

(citations omitted). I believe that the majority fails to adhere 

to these fundamental principles. Indeed, the most striking 

aspect of the majority's opinion is its complete failure even 

to mention our duty, under most circumstances, to defer to 

an agency's interpretation of its own regulations. 

II. 

Section 725.412 provides, in pertinent part, as follows: 

 16 
 (a) At any time during the processing of a claim 

 under this part, after sufficient evidence has been 

 made available to the [district director], the[district 

 director] may identify a coal miner [sic] operator (see 

 S 725.491) which may be liable for payment of the 

 claim. . . . Such identification shall be made as soon 

 after the filing of the claim as the evidence obtained 

 permits. . . . 

 . . . . 

 (c) If within one year after the final adjudication of a 

 claim, the adjudication officer determines that an 

 operator which may be liable for the payment of 

 benefits has not been notified under this section, such 

 adjudication officer shall give notice of possible liability 

 and an opportunity to respond to such operator. The 

 adjudication officer shall then take such further action 

 on the claim as may be appropriate. 

20 C.F.R. S 725.412(a), (c). 

A. The Director's Interpretation 

According to the Director, section 725.412 provides that: 

(1) a district director1 is authorized to correct mistaken 

responsible operator identifications; (2) such corrections 

may occur "at any time" during the processing of a claim, 

and up to one year after final adjudication; and (3) a 

district director has no duty--beyond the "at any time" 

limitation above--to identify a responsible operator within a 

reasonable time after the information necessary to make an 

identification becomes available to him. Each of these 

contentions will be addressed in turn. 

 1. Ability to Make Corrections 

The Director asserts that section 725.412 "clearly 

authorizes the correction of a mistaken responsible

_________________________________________________________________ 

1. A district director is a person authorized to develop and adjudicate 

claims for black lung benefits. For administrative purposes only, 

regulations substitute the term district director for the term deputy 

commissioner, which is found in the Longshore Act. See 20 C.F.R. 

S 725.101(a)(11). 

 17 
operator identification . . . ." Respondent's Br. at 12. I 

agree. There is simply nothing in the regulation that is 

inconsistent with this interpretation. Nor does this 

interpretation conflict with any statutory or constitutional 

provisions. On the contrary, the Director's view effectuates 

clear congressional intent to limit Trust Fund liability to 

those instances in which no responsible operator can be 

identified. See 26 U.S.C. S 9501(d). Moreover, it is 

supported by two persuasive Sixth Circuit decisions. See 

Oglebay, 877 F.2d at 1305 (corrections permitted pursuant 

to section 725.412(a)); Caudill Const., 878 F.2d at 181 

(corrections permitted pursuant to section 725.412(c)). 

Consequently, we must defer to the Director's reasonable 

interpretation. 

 2. Timing of Corrections 

The Director next contends that section 725.412(a) and 

(c) authorize the district director or ALJ to correct a 

mistaken responsible operator identification "at any time" 

during the processing of a claim, and up to one year after 

a final adjudication. The Director also contends that the 

ability to make such corrections is not limited to cases-- 

such as this one--where an attempt to correct a mistaken 

identification occurs prior to final adjudication of a claim. 

Once again, the Director's interpretation is not 

inconsistent with the regulation. Moreover, it is not 

inconsistent with due process. Due process is simply not 

implicated when--as here--an attempt to correct a 

misidentification is made prior to final adjudication of the 

claim.2 Cf. Caudill Const., 878 F.2d at 181 (district director 

authorized to correct misidentification of responsible carrier 

"even where a final compensation order has been issued 

against the operator"). While it might seem unfair to require 

a claimant who has already proven entitlement once to 

have to prove it again, relitigation of a finally-decided claim 

_________________________________________________________________ 

2. Because a motion to remand was made prior tofinal adjudication of 

the merits in this case, we need not consider the Director's position that 

due process would not bar a district director's attempt to correct a 

mistaken responsible operator identification when that attempt is not 

made until after final adjudication. 

 18 
is not unprecedented in the black lung program. The

statutorily prescribed modification procedure, for example, 

allows a fact finder, upon any party's motion, to review 

previously-considered facts and find a "mistake in a 

determination of fact." 20 C.F.R. S 725.310. Indeed, the 

Supreme Court has observed that 

 the "plain import of [the modification statute] was to 

 vest a [district director] with broad discretion to correct 

 mistakes of fact, whether demonstrated by wholly new 

 evidence, cumulative evidence, or merely further 

 reflection on the evidence initially submitted. 

O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 

256, 92 S. Ct. 405, 407 (1971) (per curiam). Thus, "the 

statute and regulations give the [district director] the 

authority, for one year after the final order on the claim, to 

simply rethink a prior finding of fact." Jessee v. Director, 

OWCP, 5 F.3d 723, 724-25 (4th Cir. 1993). 

In addition, Venicassa had no expectation of finality in 

the ALJ's 1989 award of benefits. See id. ("[T]he principle of 

finality" just does not apply to Longshore Act and black 

lung claims as it does in ordinary lawsuits."). The Director 

appealed that decision to the Board, arguing not only that 

the ALJ had erroneously denied the remand motion, but 

that he had erred in awarding benefits.3 Venicassa had no 

reason, therefore, to believe that the ALJ's award settled the 

issue of his entitlement to benefits. His entitlement 

remained at issue regardless of the identity of the liable 

party. We must defer to the Director's interpretation of this 

regulation. 

_________________________________________________________________ 

3. By filing a motion to remand, and then renewing it at the hearing, the 

Director did everything within his control to correct the mistaken 

responsible operator identification before the ALJ awarded benefits 

payable by the Trust Fund. The Director could not order the ALJ to 

grant the motion, see Director, OWCP v. Newport News Shipbuilding and 

Dry Dock Co., 514 U.S. 122, 134, 115 S. Ct. 1278, 1287 (1995); Old Ben 

Coal Co. v. Luker, 826 F.2d 688, 696 n.4 (7th Cir. 1987), and an appeal 

to the Board at that point would have been interlocutory. 

 19 
 3. Duty to Identify as Soon as Evidence Permits 

Finally, the Director asserts that it is inappropriate to 

mandate identification of a responsible operator within a 

reasonable time after the information necessary to make an 

identification becomes available to the district director. 

Such a reading, according to the Director, "essentially reads 

a time limitation into the regulation that `would inject a 

degree of uncertainty into future responsible operator 

identifications.' " Respondent's Br. at 30 (quoting Oglebay, 

877 F.2d at 1303). 

The Director's interpretation of this language is 

inconsistent with the regulation. While section 725.412(a) 

includes the phrase "at any time during the processing of 

the claim," it also includes the phrase "[s]uch identification 

shall be made as soon after the filing of the claim as the 

evidence obtained permits." Thus, the Director 

impermissibly reads the second phrase completely out of 

the regulation for all practical purposes. See Oglebay, 877 

F.2d at 1306-07 (Wellford, J., dissenting). Because meaning 

must be given to every word "so that no part will be 

inoperative or superfluous, void or insignificant," Sekula, 39 

F.3d at 454-55 n.16, this aspect of the Director's 

interpretation is entitled to no deference. 

 4. Conclusion 

Based on the foregoing, I conclude that a district director 

is authorized to correct a mistaken responsible operator 

identification at any time prior to final adjudication of a 

claim. However, such corrections must be made within a 

reasonable time after the information necessary to make 

such a correction becomes available to him. Because the 

Director sought to correct the mistaken identification in 

this case approximately eighteen months before final 

adjudication of the claim, he acted within a reasonable 

time, and the ALJ should have granted his motion to

remand. I would therefore affirm the Board's decision to 

vacate Venicassa's award so that the ALJ could designate 

the proper responsible operator. 

B. The Majority's Interpretation 

According to the majority, section 725.412(a) must be 

interpreted as follows: 

 20 
 While the regulation clearly states that the 

 designation of the responsible operator may be made 

 "at any time," the language of the regulation triggers 

 the process by providing that the designation be made 

 "after sufficient evidence has been made available to 

 the deputy commissioner." The regulation then further 

 limits the process by providing that the designation 

 "shall be made as soon after the filing of the claim as 

 evidence obtained permits." 20 C.F.R. S 725.412(a). The 

 focus of the regulation is clearly on the swift and 

 accurate designation of the responsible operator so 

 that the claim may be resolved through the 

 presentation of evidence to the fact finder by the 

 appropriate parties. 

Maj. Op. at 12. 

While the majority properly concludes that section 

725.412(a) requires the designation of a responsible 

operator as soon as the evidence reasonably permits, see 

Oglebay, 877 F.2d at 1306-07 (Wellford, J., dissenting), it 

fails to provide any mechanism for the correction of a 

mistaken responsible operator identification, regardless of 

how quickly and reasonably the attempted correction is 

made. See Maj. Op. at 10 ("The ALJ's decision [to deny the 

Director's motion to remand] places the incentives in the 

proper place--the Director should have gotten it right the 

first time. That would not have been an onerous task, 

because, from the outset, the OWCP had in its possession 

all the information necessary to name the proper 

responsible operator.") (emphasis added). This view is 

incorrect for several reasons. 

First, the majority's interpretation is inconsistent with, 

and completely ignores, our obligation to defer to an 

agency's interpretation of its own regulations unless it is 

plainly erroneous or inconsistent with the regulation.4 Here, 

_________________________________________________________________ 

4. The majority expressly disavows reaching its conclusion on due 

process grounds. See Maj. Op. at 12 n.6. It does not, however, offer any 

reason why the Director's interpretation is not owed"substantial 

deference." Indeed, rather than defer to the Director's interpretation of 

its own agency guidelines, the majority defers to the Benefit Review 

 21 
the Director reads section 725.412 to permit the correction 

of mistaken responsible operator identifications. Because 

this view is not "plainly erroneous or inconsistent with the 

regulation," see Caudill Const. Co., 878 F.2d at 181; 

Oglebay, 877 F.2d at 1305, it is entitled to substantial 

deference. 

Second, the majority's conclusion that a district director 

is never authorized to correct a mistaken responsible 

operator identification fails to give any effect whatsoever to 

section 725.412(c). Such a reading violates our duty "to give 

each word of the [regulation] operative effect[,]" Smith v. 

Magras, 124 F.3d 457, 462 (3d Cir. 1997), and renders this 

provision "inoperative or superfluous, void or insignificant." 

Sekula, 39 F.3d at 454-55 n.16 (quotation marks omitted). 

Third, the majority view is at odds with clear 

congressional intent, expressed over a period of years, to 

limit Trust Fund liability to instances in which no

responsible operator can be identified. See 26 U.S.C. 

S 9501(d). In creating the Trust Fund, Congress intended to 

"ensure that individual coal operators rather than the trust 

fund bear the liability for claims arising out of such 

operator's mines to the maximum extent feasible." S. Rep. 

No. 95-209, 95th Cong., 1st Sess. 9 (1977), reprinted in 

House Comm. on Educ. and Labor, 96th Cong., Black Lung 

Benefits Reform Act and Black Lung Benefits Revenue Act 

of 1977, 612 (Comm. Print 1979); see also Old Ben Coal, 

826 F.2d at 693. 

_________________________________________________________________ 

Board's interpretation of section 725.412 in Crabtree v. Bethlehem Steel 

Corp., 7 BLR 1-354 (1984). See id. at 11 ("In other words, the Crabtree 

concerns about due process and piecemeal litigation . . . are greater in 

the instant case than were those faced by the court in Oglebay."). Such 

deference, however, is improper for two reasons. First, "we give judicial 

deference to the Director, as policymaker, rather than to the Board, 

which is purely an adjudicator." Eastern Assoc. Coal Corp., 54 F.3d at 

147 (citations omitted). Second, Crabtree was wrongly decided because it 

fails to provide for the correction of mistaken responsible operator 

identifications and improperly injects a requirement into the regulation 

that the responsible operator must be identified at a preliminary 

proceeding. Crabtree; 7 BLR at 1-357; see also Director, OWCP v. Trace 

Fork Coal Co., 67 F.3d 503, 508 (4th Cir. 1995) (requiring identification 

of a responsible operator at a preliminary proceeding). 

 22 
Finally, the majority's interpretation also conflicts with 

the Sixth Circuit's decision in Oglebay, where at least two 

judges (and possibly a third5) concluded that section 

725.412(a) authorizes the correction of a mistaken 

responsible operator identification.6 It is also at odds with 

Caudill Construction, where the Sixth Circuit observed that 

subsection (c) "permits notification of a new operator where 

investigation reveals that prior identification was mistaken." 

878 F.2d at 181. Contrary to the majority's interpretation of 

the regulation, it is clear that section 725.412(a) and (c) 

both authorize the correction of mistaken responsible 

operator identifications. 

I respectfully dissent. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals 

for the Third Circuit 

_________________________________________________________________ 

5. Although Judge Wellford expressed concern in his Oglebay dissent 

with "giving the [district director] unfettered discretion to name a 

responsible operator at any time, virtually without limitation[,]" 877 

F.2d 

at 1306 (Wellford, J., dissenting), and with "encourag[ing] sloppy and 

unreasonable administration of the Act[,]" id. at 1307 (Wellford, J., 

dissenting), he did not consider whether section 725.412 authorized the 

correction of mistaken responsible operator identifications. It is 

interesting to note, however, that Judge Wellford joined the majority 

opinion in Caudill Construction, a case decided just seven days before 

Oglebay, which observed that section 725.412(c) "permits notification of 

a new operator where investigation reveals that prior identification was 

mistaken . . . ." 878 F.2d at 181. 

6. The majority correctly observes that Oglebay is somewhat 

distinguishable from the instant case because correction of the mistaken 

responsible operator identification was made prior to final adjudication 

of the claim. However, this distinction is immaterial because, as noted 

above, relitigation of a finally-decided claim is: (1) consistent with the 

regulation; (2) consistent with congressional intent; (3) not uncommon in 

the black lung program; and (4) does not violate due process. 

 23