1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Keating v. Dir., Office of Workers' Comp. Programs" (1995). 1995 Decisions. Paper 304.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/304
1 

 

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 
2 

 

* 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, 

 

0The 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. 
3 

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 

 

0Mrs. 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. 
4 

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 
5 

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 
6 

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 
7 

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. 

 

0The 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. 
8 

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). 
9 

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 pre1982 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: 

 

0Keating 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. 
10 

 (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 
11 

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 
12 

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 
13 

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 

 

0Section 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 
14 

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. 

0Section 718.305(b), 20 C.F.R., applies to pre-1982 cases and 

provides: 
15 

 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). 

0The definition of pneumoconiosis includes anthracosilicosis. 20 

C.F.R. §§ 718.201 & 727.202. 
16 

 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.