2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-15-2013

Skytop Contracting v. Director,Office of Workers

Co

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4075

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2013

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 2013 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

"Skytop Contracting v. Director,Office of Workers Co" (2013). 2013 Decisions. Paper 362.

http://digitalcommons.law.villanova.edu/thirdcircuit_2013/362
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-4075

____________

SKYTOP CONTRACTING COMPANY;

LACKAWANNA CASUALTY COMPANY,

Petitioners

v.

DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS;

UNITED STATES DEPARTMENT OF LABOR;

CHARLOTTE J. DiCASIMIRRO (Widow of BERNARD J. DiCASIMIRRO),

Respondents

____________

On Petition for Review from an

Order of the Benefits Review Board,

United States Department of Labor

(Benefits Review Board No. 11-0867 BLA)

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 26, 2013

Before: FUENTES, FISHER and CHAGARES, Circuit Judges.

(Filed: August 15, 2013)

____________

OPINION OF THE COURT

____________
2

FISHER, Circuit Judge.

Skytop Contracting Company and Lackawanna Casualty Company (collectively, 

“Skytop”) petition for review of a decision by the Benefits Review Board of the U.S. 

Department of Labor (the “Board”), which confirmed an award of survivors’ benefits to 

Charlotte DiCasimirro under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. § 901 et 

seq., as amended by the Patient Protection and Affordable Care Act (“ACA”), Pub. L. 

No. 111-148, § 1556, 124 Stat. 119, 260 (2010). For the reasons that follow, we will 

deny the petition for review.

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

DiCasimirro’s husband, a former coal miner, was awarded black lung benefits in 

1989. Following her husband’s death, DiCasimirro filed a claim for survivors’ benefits 

in 1996. That claim was denied under the pre-ACA version of the BLBA because 

DiCasimirro failed to establish that her husband’s death was caused by pneumoconiosis 

(i.e., black lung disease). In 2002, DiCasimirro filed a subsequent claim for survivors’

benefits, see 20 C.F.R. § 725.309(d) (“If a claimant files a claim under this part more 

than one year after the effective date of a final order denying a claim previously filed by 

the claimant under this part . . . , the later claim shall be considered a subsequent claim
3

for benefits.”) (emphasis added). This subsequent claim was also denied and became 

final in March 2003. Then, on March 23, 2010, Congress enacted the ACA, which 

amended the BLBA, as codified at 30 U.S.C. § 932(l), and provided automatic 

entitlement to benefits for surviving dependents of individuals who had been eligible for 

benefits at the time of their deaths. B&G Constr. Co. v. Dir., OWCP, 662 F.3d 233, 238-

53 (3d Cir. 2011) (citing ACA § 1556). Section 1556(c) of the ACA specifies the 

applicability and scope of the amendment to § 932(l):

“The amendments made by this Section shall apply with respect to claims 

filed under part B or part C of the Black Lung Benefits Act (30 U.S.C. 921 

et seq., 931 et seq.) after January 1, 2005, that are pending on or after the 

date of the enactment of this Act [March 23, 2010].”

1

(emphasis added).

DiCasimirro then filed a second subsequent claim for survivors’ benefits on 

April 22, 2011, which was granted by the DOL district director and confirmed by both an 

administrative law judge (“ALJ”) and the Board. The Board found no error in the ALJ’s 

conclusion that, based on the award of her husband’s lifetime claim and the filing date of 

DiCasimirro’s subsequent claim, she was entitled to survivors’ benefits under the 

amended BLBA. App. at 5a-7a. Also, the Board confirmed the ALJ’s award of benefits 

as of April 2003, the month after the order denying DiCasimirro’s prior claim became 

final. Id. at 7a (citing 20 C.F.R. § 725.309(d)(5) (“In any case in which a subsequent 

 

1

Skytop misquotes ACA § 1556(c) in its brief by excluding the words “or after.” 

Petitioner’s Br. at 8.
4

claim is awarded, no benefits may be paid for any period prior to the date upon which the 

order denying the prior claim became final.”)).

II.

We have jurisdiction over a petition for review of a final order from the Board 

under 33 U.S.C. § 921(c). The Board’s decisions on matters of law are subject to plenary 

review. Lombardy v. Dir., OWCP, 355 F.3d 211, 213 (3d Cir. 2004).

III.

Skytop now argues (1) that the BLBA’s automatic entitlement provision does not 

apply to a subsequent claim for benefits where a prior claim was denied due to the 

claimant’s failure to show that pneumoconiosis caused the miner’s death and (2) that the 

Board erred in confirming that benefits should be awarded as of April 2003, the month 

after the order denying DiCasimirro’s prior claim became final.

We recently addressed (and found unpersuasive) Skytop’s first argument in

Marmon Coal Co. v. Dir., OWCP, C.A. 12-3388, --- F.3d ---, 2013 WL 4017160 (3d Cir.

Aug. 8, 2013), where we specifically held that the BLBA’s automatic entitlement 

provision applies to a subsequent claim for benefits (filed after January 1, 2005 and 

pending on or after March 23, 2010) in situations where a prior claim was denied due to 

the claimant’s failure to show that pneumoconiosis caused the miner’s death. Id. at *3-6. 

Because DiCasimirro’s subsequent claim was filed on April 22, 2011, it was filed after 
5

January 1, 2005 and was pending on or after March 23, 2010, and thus, her claim falls 

within the temporal thresholds of ACA § 1556(c).

Skytop’s second argument, which pertains to the commencement date for benefits,

is also unpersuasive. The DOL regulation at issue specifically states that where “a 

subsequent claim is awarded, no benefits may be paid for any period prior to the date 

upon which the order denying the prior claim became final.” 20 C.F.R. § 725.309(d)(5) 

(emphasis added). And, although the ACA created a new cause of action for survivors’ 

benefits, Marmon Coal, 2013 WL 4017160 at *6, and abrogated certain DOL comments

pertaining to subsequent claims, see, e.g., 65 Fed. Reg. 79973 (addressing the pre-ACA 

treatment of subsequent claims for survivors’ benefits under 20 C.F.R. § 725.309), it did

not alter or contradict the regulation concerning the commencement date for the payment 

of benefits, § 725.309(d)(5). See ACA § 1556; Marmon Coal, 2013 WL 4017160 at *3, 

*6 (finding no error where the Board confirmed an award of benefits on a survivor’s 

subsequent claim as of the month after the survivor’s prior claim became final). Because 

the Board did not confirm an award of benefits for any period prior to the date upon 

which the order denying the prior claim became final, it did not err with respect to the 

commencement date for the payment of benefits.

IV.

The Board did not err in confirming the award of survivors’ benefits to 

DiCasimirro. Thus, we will deny Skytop’s petition for review.