Benefits Review Board Petition for Review, BRB No. 84-464 BLA.
Before: WEIS, BECKER, and HUNTER, Circuit Judges
1. In this petition for review of an order of the United States Department of Labor, Benefits Review Board ("the Board"), we are asked to consider the circumstances in which a party who prevailed at a hearing before an Administrative Law Judge ("ALJ") must file a cross-appeal in order to preserve certain issues for review by the Board. Our jurisdiction over this matter stems from 33 U.S.C. § 921(c) (1982) as incorporated by 30 U.S.C. § 932(a) (1982).
2. This petition was brought by Julia Dalle-Tezze, widow of Bruno Dalle-Tezze, who was the original claimant in this action. Bruno Dalle-Tezze was born in 1915, and at the age of fifteen, he left high school to work full time in the mines of the Westmoreland Coal Company. He worked for Westmoreland until 1937, at which time he became a truck driver for Air Reduction Sales Company ("Airco"), an independent contractor that supplied oxygen acetylene tanks to coal mines. While employed by Airco, Mr. Dalle-Tezze delivered oxygen and acetylene to various mines in western Pennsylvania. Though his job with Airco did not require that he actually enter the mines, he was required to load and unload tanks at the tipple areas. As a result, Mr. Dalle-Tezze allegedly suffered significant coal dust exposure during his twenty-five years of employment with Airco. Dalle-Tezze left Airco in 1962 and began working for Rozina Coal Company as a miner. Two years later he had a heart attack and retired.
3. In 1972, Dalle-Tezze filed with the Social Security Administration a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (1982). The Social Security Administration initially denied benefits and then forwarded the claim to the Department of Labor. In 1979, the Department of Labor, too, denied benefits, and the case was then referred to an ALJ for formal hearing.
4. At the hearing, Dalle-Tezze urged that his twenty-five years of service for Airco should be considered coal mine employment for purposes of the black lung statute and regulations and, therefore, he was entitled to the interim presumption of total disability accorded to persons who have engaged in coal mine employment for at least ten years. See 20 U.S.C. § 727.203 (1986). After referring this issue to the Deputy Commissioner of the Office of Workers' Compensation Programs, the ALJ ultimately found that Dalle-Tezze's years at Airco did not qualify as coal mine employment and, accordingly, that he was not entitled to the interim presumption of disability.
5. Since the ALJ found that Dalle-Tezze did not qualify for the interim presumption, the ALJ evaluated the claim under part 410 of the black lung regulations. In order to establish a claim under part 410, the claimant must carry the burden of proving 1) that he is a coal miner, 2) that he is totally disabled due to pneumocoiosis (black lung disease), and 3) that his pneumoconiosis arose out of employment in the nation's coal mines. 20 C.F.R. § 410.41(b) (1986). The ALJ held that Dalle-Tezze carried his burden of proving all three of the elements listed above, and on March 28, 1983 the ALJ issued an order awarding benefits.
6. The Director of the Office of Workers' Compensation Programs ("the Director") appealed the ALJ's decision to the Board. In particular, the Director urged that Dalle-Tezze failed to establish a claim under part 410 because there was not substantial evidence in the record to support a finding that Dalle-Tezze's pneumoconiosis arose out of coal mine employment. In his response brief, Dalle-Tezze offered two rejoinders: 1) that there was substantial evidence linking the pneumoconiosis to coal mine employment, and 2) that the ALJ erred in finding that the Airco work was not coal mine employment and, therefore, a proper application of the interim presumption would support the ALJ's award of benefits. The Board held that there was not substantial evidence linking the disease to the relevant employment. As to the Airco issue, the Board simply stated:
Because claimant has not raised this issue in a separate appeal or cross-appeal, we may not address it. See 20 C.F.R. § 802.205; King v. Tennessee Consolidation [sic] Coal Co., 6 Bankr. L. Rep. (CCH) 1-87 (1983).
Dalle-Tezze v. Director, OWCP, BRB No. 84-464 BLA, unpublished op. at 2 (Apr. 19, 1986). Accordingly, the Board reversed the order of the ALJ and denied benefits.
7. Thereafter, Dalle-Tezze moved that the Board reconsider its decision. In denying the motion, the Board stated:
Claimant argues that the Board erred in declining to reach the issues of years of coal mine employment and entitlement to benefits under 20 C.F.R. Part 727. The Board based its decision not to reach these issues on the ground that they were not raised in a separate appeal or cross appeal. The Board's decision in King v. Pennsylvania [sic] Consolidated Coal Co., 6 Bankr. L. Rep. (CCH) 1-87 (1983), states that any new argument, the acceptance of which ...