United States District Court, E.D. Kentucky, Southern Division, Pikeville
DENITA THACKER, on behalf of The Estate of Geraldine Clevenger, Widow of Donald Lee Clevenger, Plaintiff,
OLD REPUBLIC INSURANCE CO., et al., Defendants.
ORDER AND OPINION
K. CALDWELL UNITED STATES DISTRICT JUDGE.
matter is before the Court on cross-motions for summary
judgment. For the reasons stated below, Plaintiff's
Motion for Summary Judgment (DE 14) is
GRANTED, and the Defendants' Motion for
Summary Judgment (DE 10) is DENIED.
case stems from a claim under the Black Lung Benefits Act
(“BLBA”), 30 U.S.C. §§ 901-945.
Plaintiff, Denita Thacker on behalf of the Estate of a
deceased black lung beneficiary, filed this suit under 33
U.S.C. § 921(d) claiming that American Business &
Mercantile Insurance and its parent company, Old Republic,
(hereinafter collectively referred to as “Old
Republic”) owe her additional compensation under 33
U.S.C. § 914(f) and 20 C.F.R. § 725.607. (DE 1 at 1.)
Clevenger worked for E F & B Coal in Eastern Kentucky
until he retired in 1985. (DE 10-2 at 1.) Mr. Clevenger
passed away in February 2010, and thereafter, his spouse,
filed for survivor benefits under the BLBA. (DE 10-2 at 2.)
On February 2, 2011, the U.S.
of Labor's Director of the Office of Workers'
Compensation Programs (“District Director”)
issued a proposed decision and order finding that Mrs.
Clevenger was entitled to black lung benefits going back to
her husband's death in February 2010. (DE 1 at 3.) Old
Republic challenged the award and sought a formal hearing
before an Administrative Law Judge (“ALJ”). While
Old Republic was challenging the award, the U.S. Department
of Labor's Black Lung Disability Trust Fund (“Trust
Fund”) stepped in and made interim payments to Mrs.
Clevenger. On July 3, 2014, the ALJ awarded Mrs. Clevenger
benefits going back to February 2010. (DE 1 at 4.)
Thereafter, Old Republic appealed the ALJ's order to the
U.S. Department of Labor's Benefits Review Board. Then,
Mrs. Clevenger died on August 9, 2015, and her daughter,
Denita Thacker, became heiress and executrix of her estate.
(DE 10-2 at 2.) On August 31, 2015, the Benefits Review Board
vacated the ALJ's July 3, 2014 order and remanded with
instructions for the ALJ. (DE 1 at 4.) On June 13, 2016 the
ALJ issued an order (“June 13, 2016 order”) again
awarding benefits to Mrs. Clevenger with the same onset date
of February 2010. (DE 14 at 5.) The District Director
received the ALJ's decision on August 1, 2016 and issued
a computation of benefits on August 17, 2016 (“August
17, 2016 computation of benefits”) requiring that Old
Republic pay Mrs. Clevenger's benefits. (DE 14-1, 14-2.)
Old Republic again appealed the ALJ's decision to the
Benefits Review Board. (DE 14 at 6.) On July 16, 2017, the
Benefits Review Board affirmed the ALJ's award of
benefits, and Old Republic did not further challenge the
award. On January 30, 2018, the District Director issued a
final calculation of benefits (“January 30, 2018
computation of benefits”) stating that Old Republic
owed Mrs. Clevenger's Estate $638.10 and the Trust Fund
$40, 813.40, which reflected the amount of payments the Trust
Fund made to Mrs. Clevenger. (DE 1 at 5.) On February 2,
2018, Old Republic paid the amounts stated in the January 30,
2018 computation of benefits.
August 15, 2018, Plaintiff brought suit under 33 U.S.C.
§ 921(d) against E F & B Coal's insurance
provider, Old Republic. Plaintiff asserts that Old Republic
owes additional compensation under 33 U.S.C. § 914(f)
and 20 C.F.R. § 725.607, which provide that twenty
percent additional compensation is owed when a compensation
award is not paid within ten days after it becomes
“due, ” unless the order making such award is
being reviewed under 33 U.S.C. § 921 and an order
staying payments has been issued by the Benefits Review Board
or Court. 33 U.S.C. § 914(f); 20 C.F.R. § 725.607.
Plaintiff contends that Old Republic did not timely pay the
June 13, 2016 order awarding benefits once it became
“due” and did not seek an order staying those
payments, thus triggering the additional compensation
addressed by 33 U.S.C. § 914(f) and 20 C.F.R. §
Republic filed a motion for judgment on the pleadings, or in
the alternative, a motion for summary judgment asserting that
Plaintiff is not entitled to additional compensation under 33
U.S.C. § 914(f). (DE 10.) Plaintiff asserts that a
motion for judgment on the pleadings is inappropriate but
agrees that the case is appropriate for summary judgment.
Plaintiff has thus filed a cross-motion for summary judgment.
(DE 14.) The issues have been fully briefed, and they are
ripe for summary judgment.
Republic raises several arguments against awarding additional
compensation under 33 U.S.C. § 914(f) to Plaintiff: (1)
this Court does not have jurisdiction under 33 U.S.C. §
921(d) because it complied with the final award issued on
January 30, 2018; (2) the plain language of the Longshore and
Harbor Workers' Compensation Act (“LHWCA”),
the BLBA, and the Department of Labor's
(“DOL”) black lung regulations preclude
Plaintiff's argument that the “penalty” in 33
U.S.C. § 914(f) is applicable in this case; (3)
Plaintiff's theory of recovery invites an unworkable
administrative scheme and the payment procedures of the BLBA
and the LHWCA are distinct; and (4) since the District
Director did not indicate that any penalty was owed and the
law required the District Director to do so, Plaintiff's
request for additional compensation must fail. (DE 10-1 at 18
n.6; DE 19 at 8.)
also raises arguments in support of her position: (1) under
20 C.F.R. § 725.502, benefits became due on September
16, 2016, and since Old Republic did not pay until February
2, 2018, it owes additional compensation under 33 U.S.C.
§ 914(f) and 20 C.F.R. § 725.607, which operated
automatically to add twenty percent additional compensation
to the June 13, 2016 order awarding benefits; and (2) Old
Republic owes interest, pursuant to 20 C.F.R. §
725.608(a)(3), on the unpaid additional compensation owed to
Plaintiff. (DE 14.) Plaintiff also responds to Old
Republic's arguments, first asserting that Federal Rule
of Civil Procedure 12(d) requires that Old Republic's
motion for judgment on the pleadings be treated as a motion
for summary judgment because it introduces facts and exhibits
beyond the complaint. (DE 14 at 17.) Then, Plaintiff asserts
that the Court does have jurisdiction under 33 U.S.C. §
921(d) because that provision is incorporated into the BLBA
under 30 U.S.C. § 932(a) and she is seeking to enforce a
compensation order-which includes additional compensation
based on Old Republic's untimely payment and the
automatic operation of 33 U.S.C. § 914(f) and 20 C.F.R.
§ 725.607-that has become final. Following, Plaintiff
contends that her theory of recovery is supported by the
BLBA, DOL's black lung regulations, and the relevant case
law. Finally, Plaintiff provides several reasons why the
District Director did not need to include the twenty percent
additional compensation in the January 30, 2018 computation
of benefits. (DE 22 at 6-9.)
further explained below, after careful consideration of the
parties' arguments, relevant law, and applicable DOL
black lung regulations, the Court finds that Plaintiff is
entitled to additional compensation under 33 U.S.C. §
914(f) and 20 C.F.R. § 725.607. Although Old Republic
raises several concerns about the operation of LHWCA
provisions in the black lung benefits context, its concerns
would be better addressed by the legislature, not the
motion for judgment on the pleadings is addressed under the
same standard applicable to a motion to dismiss. Under that
standard, unless the complaint alleges “enough facts to
state a claim to relief that is plausible on its face”
it must be dismissed. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). However, where “matters
outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary
judgment under Rule 56.” Fed.R.Civ.P. 12(d).
both parties refer to facts and exhibits in their
cross-motions that are outside the complaint. Accordingly,
the cross-motions are treated as motions for summary judgment
under Rule 56. See id.
judgment is appropriate where there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“The evidence, all facts, and any inferences that may
permissibly be drawn from the facts must be viewed in the
light most favorable to the nonmoving party.” Combs
v. Meijer, Inc., No. 5:12-CV-209-KSF, 2012 WL 3962383,
at *2 (E.D. Ky. Sept. 10, 2012) (citing Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
parties agree that there is no genuine dispute as to any
material fact, and the issues addressed in the cross-motions
are ripe for summary judgment. (DE 10-1 at 5-6; DE 14 at 7.)
Incorporation of LHWCA provisions into the BLBA under 30
U.S.C. § 932(a).
BLBA was established for the following purposes: (1) to
provide benefits to coal miners who have been disabled due to
pneumoconiosis; (2) to provide benefits to the miners'
surviving dependents if their death was caused by
pneumoconiosis; and (3) 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. 30 U.S.C. § 901. 30 U.S.C. § 932(a)
of the BLBA states that the provisions of the LHWCA-with the
exception of specifically excluded provisions and contrarily
enacted black lung provisions and regulations-shall apply to
“each operator of a coal mine … with respect to
death or total disability due to pneumoconiosis arising out
of employment in such mine.” Id. §
932(a). § 932(a) further states:
[i]n administering this part, the Secretary is authorized to
prescribe in the Federal Register such additional provisions,
not inconsistent with those specifically excluded by this
subsection, as he deems necessary to provide for the payment
of benefits by such operator to persons entitled thereto as
provided in this part and thereafter those provisions shall
be applicable to such operator.
significant provisions of the LHWCA are incorporated into the
BLBA, including 33 U.S.C. §§ 914 and 921, unless
they are contrary to other BLBA provisions or DOL
Additional Compensation under 33 U.S.C. § 914(f) and 20
C.F.R. § 725.607.
asserts that Old Republic owes her additional compensation
under 33 U.S.C. § 914(f) and 20 C.F.R. § 725.607
relating to the June 13, 2016 order. The parties agree that
§ 914 is a LHWCA provision incorporated into the BLBA at
30 U.S.C. § 932(a), however, they disagree as to whether
§ 914 operates to provide additional compensation to
If any compensation, payable under the terms of an award, is
not paid within ten days after it becomes due, there shall be
added to such unpaid compensation an amount equal to 20 per
centum thereof, which shall be paid at the same time as, but
in addition to, such compensation, unless review of the
compensation order making such award is had as provided in
section 921 of this title and an order staying payment has
been issued by the Board or court.
33 U.S.C. § 914(f).
the DOL's black lung regulations provide:
(a) If any benefits payable under the terms of an award by a
district director (§ 725.419(d)), a decision and order
filed and served by an administrative law judge (§
725.478), or a decision filed by the Board or a U.S. court of
appeals, are not paid by an operator or other employer
ordered to make such payments within 10 days after such
payments become due, there will be added to such unpaid
benefits an amount equal to 20 percent thereof, which must be
paid to the claimant at the same time as, but in addition to,
such benefits, unless review of the order making such award
is sought as provided in section 21 of the LHWCA and an order
staying payments has been issued.
(b) If, on account of an operator's or other
employer's failure to pay benefits as provided in
paragraph (a) of this section, benefit payments are made by
the fund, the eligible claimant will nevertheless be entitled
to receive such additional compensation to which he or she
may be eligible under paragraph (a), with respect to all
amounts paid by the fund on behalf of such operator or other
(c) The fund may not be held liable for payments of
additional compensation under any circumstances.
20 C.F.R. § 725.607.
determine whether any additional compensation is owed under
33 U.S.C. § 914(f) and 20 C.F.R. § 725.607, the
Court must first determine when Plaintiff's benefits
parties agree that 20 C.F.R. § 725.502 defines when
black lung benefits are due. They disagree, however, on when
Plaintiff's benefits became due. Black lung benefits are
due thirty days after two conditions are fulfilled: (1) an
effective compensation order has been issued; and (2) the
District Director computes the amount of benefits payable and
provides notice to the parties. Id. § 725.502.
A compensation order is the order rejecting the claim or
making the award. 33 U.S.C. § 919(e) (“The order
rejecting the claim or making the award (referred to in this
chapter as a compensation order) …”). A
compensation order issued by an ALJ becomes effective when it
is filed in the office of the district director. 20 C.F.R.
§§ 725.479 and 725.502(a)(2). “Benefits shall
be considered due after the issuance of an effective order
requiring the payment of benefits by a district director,
administrative law judge or an appeal to the Board or court,
” unless payment of those benefits has been
appropriately stayed. Id. § 725.502(a)(1). 20
C.F.R. § 725.502(b)(2) provides that “[w]ithin 30
days after the issuance of an effective order requiring the
payment of benefits, the district director shall compute the
amount of benefits payable… and shall so notify the
parties.” Id. § 725.502(b)(2). §
725.502(b)(2) further provides that “[b]enefits and
interest payable … shall be due on the thirtieth day
following issuance of the district director's
Republic asserts that the relevant compensation order is the
January 30, 2018 computation of benefits issued by the
District Director. (DE 10-1 at 7.) Old Republic states
“[a]lthough the [20 C.F.R. § 725.502(a)(1)]
recognizes that benefits shall be considered ‘due'
after the issuance of an effective order requiring their
payment, the actual compensation order that triggers the
payment of those benefits is issued by the district director
pursuant to 20 C.F.R. § 725.502(b).” (DE 10-1 at
16.) Old Republic argues that the computation by the District
Director is the only way for the liable party to know what
payment is due. Old Republic further asserts ...