Erma White, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 865 F.2d 1262 (4th Cir. 1989)

Erma White, daughter of deceased coal miner Harry Craze, petitions pro se for review of the decision and order of the Benefits Review Board [BRB, or the Board] affirming the administrative law judge's denial of her claim¹  for coal worker's survivors' benefits under the Black Lung Benefits Act (as amended), 30 U.S.C. §§ 901 et seq.; petitioner also seeks leave to proceed in forma pauperis in this Court. The Director has moved to dismiss for want of jurisdiction based on the untimely filing of White's petition. We deny the motion to dismiss, deny petitioner's application to proceed in forma pauperis, and affirm the Board's order affirming the ALJ's denial of benefits.

This is a court of limited jurisdiction. We can review decisions of the BRB only when they are brought before us under the conditions and within the times specified by statute. The statute governing appeals from the BRB requires that an aggrieved party's petition for review be filed in the circuit court "within sixty days following the issuance of such Board order." 33 U.S.C. § 921(c); see also 20 C.F.R. Sec. 802.410 (1987).

The Board's order was filed January 29, 1988; hence, White's petition for review should have been filed in this Court no later than March 29, 1988. Instead, White filed her petition for review with the Board on March 22, 1988.

White's mistake was compounded by the Board's lack of attention in following through with her papers: not until May 16, 1988, did the Board send White a letter informing her that she had filed her petition with the wrong governmental agency and recommending she file with a circuit court. Of course, by the date of the Board's response White's petition was already untimely by 48 days. Had the Board responded promptly to White's petition, it is quite conceivable that she would have protected her rights to review by timely filing her petition in this Court. Clearly, White was prompt in responding to the Board's notification: she filed her petition for review with this Court on May 22, 1988--only six days after the Board's letter, but 114 days after the Board's decision and order.

While the procedural rule governing the filing of petitions for review of agency orders, Fed. R. App. P. 15, provides no guidance for handling petitions erroneously filed in the agencies rather than in the circuit courts, Fed. R. App. P. 4(a) provides that

[i]f a notice of appeal is mistakenly filed in the court of appeals, the clerk of the court of appeals shall note thereon the date on which it was received and transmit it to the clerk of the district court and it shall be deemed filed in the district court on the date so noted.

We conclude that the principle of Fed. R. App. P. 4(a) is applicable under the facts of this case; thus we treat White's petition for review as timely filed based on the date it was received by the Board. See Boggs v. U.S. Railroad Ret. Bd., 725 F.2d 620, 621 (11th Cir. 1984) (timely petition for review of U.S. Railroad Retirement Board's decision erroneously filed in district court vice circuit court treated as timely filed in circuit court by analogy to Fed. R. App. P. 4(a)).

A. The Benefits Review Board's scope of review of administrative law judges' decisions and orders is governed by statute and regulation:

The Benefits Review Board is not empowered to engage in a de novo proceeding or unrestricted review of a case brought before it. The Board is authorized to review the findings of fact and conclusions of law on which the decision or order appealed from was based. Such findings of fact and conclusions of law may be set aside only if they are not, in the judgment of the Board, supported by substantial evidence in the record considered as a whole or in accordance with law.

20 C.F.R. Sec. 802.301 (1987); 33 U.S.C. § 921(b) (3), incorporated into the Act by 30 U.S.C. § 932(a). Zbosnik v. Badger Coal Co., 759 F.2d 1187, 1189-90 (4th Cir. 1985); Wilson v. Benefits Review Board, 748 F.2d 198, 199-200 (4th Cir. 1984).

On a petition for review of a BRB order we examine only for errors of law, including whether the BRB has used the proper standard of review in considering the ALJ's decision and order. See Amigo Smokeless Coal Co. v. Director, Office of Workers' Compensation Programs, 642 F.2d 68, 69 (4th Cir. 1981); see also Zbosnik, 759 F.2d at 1189-90; and Eplion v. Director, Office of Workers' Compensation Programs, 794 F.2d 935, 936 (4th Cir. 1986). To determine whether the BRB has properly adhered to its scope of review, the Court must make an independent review of the record and decide whether the ALJ's findings are supported by substantial evidence. Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir. 1979), cited in Amigo, 642 F.2d at 69.

B. Black Lung benefits are allowable to a miner's survivors if (i) the miner was totally disabled at the time of his death and the disability was caused, at least partially, by pneumoconiosis²  arising out of coal mine employment, or (ii) if the miner's death was due to pneumoconiosis. All these conditions are presumed if the miner was engaged in coal mine employment for at least ten years and meets at least any one of four³  medical requirements: (1) a chest X-ray, biopsy, or autopsy establishes the presence of pneumoconiosis; (2) ventilatory studies establish the presence of a respiratory or pulmonary disease--not necessarily pneumoconiosis--of a specified severity; (3) blood gas studies demonstrate the presence of an impairment in the transfer of oxygen from the lungs to the blood; or (4) other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory impairment. 20 C.F.R. Sec. 727.203 (1987); see Mullins Coal Co., Inc. v. Director, Office of Workers' Compensation Programs, 56 U.S.L.W. 4044, 4045 (U.S. Dec. 14, 1987) (No. 86-327).

C. The evidence adduced to establish Harry Craze's years of employment in coal mining was inconclusive, at best. His widow--petitioner's now-deceased mother--stated in her application for disability benefits that Harry Craze worked for Consolidation Coal Company and Osceola Mills Mining Company from 1918 to 1925. Unsworn, handwritten notes from other coal workers tended to buttress those dates of employment. Petitioner testified that as a child she was told her father went to work in the mines when he was only 14 years old; since Harry Craze was born in 1898, petitioner's computations would have had him working in the mines from approximately 1912 or 1913 to 1925, thus establishing ten years employment for purposes of the interim presumption. However, petitioner was unable to produce any credible, corroborating evidence that her father went into the mines before 1918. Thus, the interim presumption found at 20 C.F.R. Sec. 727.203 is not available to petitioner.

D. We are aware that our decision in Broyles v. Director, Office of Workers' Compensation Programs, 824 F.2d 327 (4th Cir. 1987), cert. granted, 56 U.S.L.W. 3676 (U.S. Apr. 5, 1988) (No. 87-1085), holds that the interim presumption available at 20 C.F.R. Sec. 410.490 is also available to petitioner. That presumption can be triggered by a qualifying x-ray or blood gas study and a showing that the miner's disability arose from his employment in the mines. However, as the BRB correctly noted, the lack of medical evidence to support petitioner's claim means that this presumption also is not available.

The only X-ray evidence adduced at the hearing before the ALJ was interpreted as showing pneumonitis of the right base, calcified nodules in both hilium, and a very prominent aorta. Significantly, the reading made no reference to the presence of pneumoconiosis.

The ALJ also was presented with medical reports by Harry Craze's treating physician. These reports disclosed that Craze was treated for pulmonary fibrosis and chronic bronchitis from 1960 until his death in 1965. Craze's death certificate, signed by his treating physician, states that the miner's death was caused by arterio-sclerotic heart disease arising from coronary insufficiency and arthritis in all large joints, with amyotrophic lateral sclerosis as a significant condition contributing to death. Again, there was no medical evidence attributing Craze's death to pulmonary disease nor attributing any disability to respiratory impairment.

Finally, the only evidence before the ALJ tending to establish that Craze's death or disability were attributable to pneumoconiosis were the statements of petitioner and her mother. At best, their evidence only showed that Harry Craze was often short of breath, suffered coughing spells, and was unable to work during the six-year period preceding his death.

The ALJ concluded that the evidence adduced at the hearing was insufficient to establish that Harry Craze worked at least ten years in the mines--thus disallowing invocation of the interim presumption--or that he was totally disabled at the time of his death with a disability caused, at least partially, by pneumoconiosis arising out of coal mine employment, or that his death was due to pneumoconiosis. He denied the claim for survivors' benefits. The Benefits Review Board affirmed the ALJ's decision and order denying benefits.

Our review of the record as a whole discloses that there is substantial evidence to support the ALJ's conclusion that the evidence, considered as a whole, is insufficient for invoking either interim presumption, for proving that Harry Craze was totally disabled by pneumoconiosis at the time of his death, or for proving that his death was due to pneumoconiosis arising out of his coal mine employment. Accordingly, we affirm the BRB's affirming the ALJ's denial of benefits.

Our review of White's application to proceed in forma pauperis and her correspondence accompanying her application leads to the conclusion that she reasonably can afford to pay the court costs associated with this review; accordingly, we deny her application.

In summary, we deny the Director's motion to dismiss for want of jurisdiction, deny petitioner's application to proceed in forma pauperis, and affirm the Benefits Review Board's January 29, 1988, decision and order affirming the ALJ's denial of petitioner's claim for survivor's benefits. We dispense with oral argument since it would not significantly aid the decisional process. See F.R.App.P. 34(a) and Loc.R. 34(a).

DIRECTOR'S MOTION TO DISMISS DENIED; PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS DENIED; BRB'S ORDER AFFIRMED.