# Director, Office of Workers' Compensation Programs v. Oglebay Norton Co. > Court of Appeals for the Sixth Circuit · August 8, 1989 · 877 F.2d 1300 URL: https://www.frixlaw.com/law-library/cases/9479172 ## Case - **Full name:** DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Petitioner, v. OGLEBAY NORTON CO., Respondent - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** August 8, 1989 - **Citations:** 877 F.2d 1300; 1989 WL 67047 - **Precedential status:** Published - **Opinion:** Dissent by Wellford - **Judges:** Wellford, Guy, Brown - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479172 ## How later opinions describe it (automated extraction) - discussing responsible operators’ place in the liability chain under the BLBA ## Opinion text WELLFORD, Circuit Judge, dissenting. I dissent from the majority’s decision that the deputy commissioner’s long and egregious delay in naming Oglebay Norton as the responsible operator is permitted by the applicable regulations. 20 C.F.R. § 725.412 (a) provides, in part: At any time during the processing of a claim under this part, after sufficient evidence has been made available to the deputy commissioner, the deputy commissioner may identify a coal miner operator ... which may be liable for the payment of the claim in accordance with the criteria contained in Subpart F of this part. Such identification shall be made as soon after the filing of the claim as the evidence obtained permits.... The majority interprets this passage as giving the deputy commissioner unfettered discretion to name a responsible operator at any time, virtually without limitation. I do not believe this is a reasonable interpretation of 725.412(a). In my view, it is not logical to construe the phrase “[a]t any time during the processing of a claim” as does the majority opinion. The remainder of that sentence and the sentence following plainly convey that the deputy commissioner identify the responsible operator as soon as the available evidence would reasonably permit. The regulation, taken as a whole, simply recognizes that the evidence needed to make the correct identification could take some time to accumulate. The deputy commissioner is not required to designate a responsible party immediately upon the filing of a claim but may wait until all of the needed evidence has been presented, and this might occur “at any time” during the claim’s processing. The second sentence of the quoted regulation commands that “[s]uch identification shall be made as soon after the filing of the claim as the evidence obtained per-mits_” (emphasis added). The majority opinion contends that the plain meaning of this sentence “appears to be at odds with the language of the first sentence.” As a result, the majority chooses to read the second sentence completely out of the regulation for all practical purposes. The imperative contained in the second sentence should be read in combination with the first; obviously it was not intended to have no meaning at all. The majority opinion seems to violate the very rule on which it purports to rely: “[ejvery statute must be viewed in its entirety so that each part has *1307 a sensible and intelligent effect harmonious with the whole.” Payne v. Panama Canal Co., 607 F.2d 155, 164 (5th Cir.1979). Clearly, any “harmonious construction” of the regulation would give the second sentence “a sensible and intelligent effect.” I would read § 725.412(a) to command that the deputy commissioner designate a responsible operator as soon as the evidence reasonably permits him to do so. Statutory interpretation problems aside, the message sent out by the majority opinion is to encourage sloppy and unreasonable administration of the Act by government officials charged with its enforcement to the potential detriment of responsible operators. There is no dispute that the deputy commissioner had the necessary evidence to name Oglebay Norton as the responsible operator almost a decade before it was so designated. This inexplicable and unexplained delay not only evidences careless administration, but also may well cause unfair prejudice to the operator. By the time Oglebay Norton was designated, the coal miner whose claim was to be adjudicated had already died. There was therefore no further opportunity to conduct its own discovery and medical examination of the miner. In addition, other potential witnesses may have died or otherwise become unavailable in the ten years that have passed since the deputy commissioner was originally given notice to name Oglebay Norton as the responsible operator. The result reached may also present a due process question in light of the affirmative mandate of § 725.412(a), which has been ignored by the director. At the very least, Oglebay Norton deserves a fair opportunity to demonstrate through an evidentiary hearing the potential prejudice resulting from this long delay before it is called upon to respond for substantial liability. The fact that the trust fund may, or may not, have adequate reserves or funding should not be deemed a pertinent factor in this decision. I find Crabtree v. Bethlehem Steel Corp., 7 BLR 1-354 (1984), persuasive authority, although it is true we do not have to follow it. There need be no requirement that the deputy commissioner must identify all potential responsible operators in one proceeding, but he should identify or make identification “as soon after the filing of the claim as the evidence obtained permits.” For the foregoing reasons, I respectfully DISSENT. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479172. Public record. Not legal advice.