
    CIRCUIT COURT OF WISE COUNTY
    Harry Hurd v. Joseph E. Wolfe and Wolfe and Farmer
    March 16, 1990
    Case No. L87-486
   By JUDGE ROBERT L. POWELL

This case is before the Court on a Motion for Summary Judgment filed by the defendants. The plaintiff contends in this legal malpractice case that the defendants were negligent in being late in filing an appeal from an adverse ruling by Administrative Law Judge Richard E. Huddleston (ALJ) in his claim for "black lung" benefits, and as a result, he lost his right to further appeals. He further contends that the ALJ erred in his order denying benefits in the "case within the case" (Harry Hurd v. Director, Office of Workers' Compensation). Plaintiff, in defendants’ Request for Admissions, admits that the error he alleges the ALJ committed was that he failed to apply the criteria contained in 20 C.F.R. § 410.490(b) to his claim. The record does not support that contention. The presumption of total disability in 490(b) was invoked, whether or not ten years of coal mining employment was proven, and the plaintiff was entitled to a presumption of total disability due to pneumoconiosis unless the presumption was rebutted as provided by 490(c). This Court is of the opinion that the ALJ did not commit reversible error in his application of § 410.490(b) to plaintiff’s claim.

In considering the "case within the case," the ALJ found that presumption of total disability was rebutted by the Director. This finding was made after reviewing all the medical evidence and finding that the Director had carried the burden of rebuttal and established that plaintiff did not have chronic respiratory condition. He also considered the presumption under § 727.203(a)(1) and found that rebuttal would have occurred just as it did under 490(c)(2). He considered the criteria under Part 410 of the Regulations ....

After reviewing all of the above, the Court is of the opinion that the ALJ did not commit reversible error in his decision. The Court therefore grants the motion for Summary Judgment and requests that an appropriate order granting said Motion and dismissing this action with prejudice be submitted, saving to plaintiff all objections.  