R & H Steel Bldgs., Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Citation: 146 F.3d 514
• Decision Date: 16 June 1998
• Docket Number: No. 97-3409,97-3409
• Parties: R&H STEEL BUILDINGS, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; and Robin Irvin, daughter of Rudolph and Betty Seibert (deceased), Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 514

146 F.3d 514

R&H STEEL BUILDINGS, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR; and Robin Irvin,

daughter of Rudolph and Betty Seibert

(deceased), Respondents.

No. 97-3409.

United States Court of Appeals, Seventh Circuit.

Argued April 23, 1998.

Decided June 16, 1998.

Timothy J. Parsons (argued), Gorsuch Kirgis L.L.C., Denver, CO, for Petitioner.

Shelby Hallmark, Department of Labor, Office of Workers' Compensation Programs, Washington, DC, Edward Waldman (argued), Christian P. Barber, Department of Labor, Office of the Solicitor, Washington, DC, for Respondent Office of Workers' Compensation Programs.

Sandra M. Fogel (argued), Culley & Wissore, Carbondale, IL, for Respondent Seibert.

Thomas O. Shepherd, Jr., Benefits Review Board, Washington, DC, for Party-In-Interest Benefits Review Board.

Before BAUER, FLAUM, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

R & H Steel Buildings, Inc. performs construction work at coal mine sites. For that reason, even though it is not a coal mining company it can, under certain circumstances, be held responsible for paying benefits for its employees under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. In this case the Benefits Review Board of the Department of Labor found that R & H was, in fact, responsible for reimbursement of benefits paid on behalf of Rudolph Seibert by the Black Lung Disability Trust Fund. R & H appeals.

The appeal involves first, whether Seibert's disability was a result of pneumoconiosis, and secondly, because when he worked for R & H Seibert was a construction worker, whether he was a "miner" under the provisions of the Act and whether R & H is a "responsible operator," that is, an operator responsible for paying benefits. The appeal is from the decision of the Benefits Review Board affirming the decision of the administrative law judge. In a circumstance such as this we review the decision of the administrative law judge to see whether it is supported by substantial evidence. Zeigler Coal Co. v. Kelley, 112 F.3d 839 (7th Cir.1997).

Before we launch into the merits of the dispute, we note that the present appeal involves only the tip of the iceberg which is this case. The appeal is from the July 25, 1997, decision of the Benefits Review Board affirming the decision of ALJ Mollie W. Neal, on June 28, 1996, denying a motion for modification of the January 12, 1993, decision of ALJ Richard D. Mills. But that also is not all that happened in agency. The claim was filed on October 16, 1974. ALJ Mills denied benefits; the Board remanded; ALJ Mills again denied benefits; the Board again remanded. By now it is 1992, and Seibert died on June 21 of that year. His wife Betty pursued the claim. ALJ Mills awarded benefits; R & H filed for reconsideration. Betty died on April 18, 1993. Her daughter pursued the claim. ALJ Mills denied reconsideration. R & H appealed but then filed a request for modification, causing the Board to dismiss the appeal. Finally we reach the point where ALJ Neal issued her decision which we are reviewing, which as we said involves two issues.

Turning to the second issue first, we note that R & H is being looked to for the payment of benefits in this case because of timing. First, although Seibert worked in coal mines, as a miner, for other companies for 10 years, that employment occurred prior to December 31, 1969. R & H is the only employer who is a possible responsible operator for whom Seibert worked after 1969. If a miner does not have employment after 1969, the trust fund assumes liability for black lung benefits, but if there is an employer after that date, the last employer for which the claimant worked for at least one year is responsible for the payments. 20 C.F.R. § 725.493(a)(1).

The regulations further provide that one year of employment can be either a continuous period of employment or separate periods of employment which add up to one year. 20 C.F.R. § 725.493(b).

Thus we are confronted with two questions. Was there substantial evidence to show that Seibert was a miner within the meaning of the Act and, if so, was there substantial evidence that he worked for R & H for one year? The Black Lung Benefits Reform Act of 1977 amended the definition of "miner" so that under certain circumstances a construction worker is deemed a "miner" for purposes of the Act. Construction workers are considered miners (1) if they work in or around a coal mine or a coal preparation facility, and (2) if they are exposed to "coal dust" in the course of their employment. Title 30, U.S.C. § 902(d), provides that the term "miner"

includes an individual who works or has worked in coal mine construction or transportation in or around a coal mine, to the extent such individual was exposed to coal dust as a result of such employment.

Further, 20 C.F.R. § 725.202(a) provides:

[T]here shall be a rebuttable presumption that such individual [a coal mine construction worker] was exposed to coal mine dust during all periods of such employment occurring in or around a coal mine or coal preparation facility for purposes of ... determining the identity of a coal mine operator liable for the payment of benefits in accordance with § 725.493.

The presumption may be rebutted by a showing

(i) that the individual was not regularly exposed to coal mine dust during his or her employment in or around a coal mine or preparation facility; or (ii) that the individual was not regularly employed in or around a coal mine or coal preparation facility.

20 C.F.R. § 725.202(a). If the periods for which R & H is unable to establish rebuttal total one year, R & H is the responsible operator liable for any benefits ultimately awarded in this case.

What the facts show as to Seibert's employment is that he was a traditional coal miner for 10 of the years between 1935 and 1955. He worked at nonmining employment from 1955-1975, when he began to work for R & H Steel Buildings in coal mine construction. He worked for R & H until 1981.

At R & H, Seibert worked at a number of coal mine construction projects. The work involved surface projects and did not involve mining. The dispute in this case is over the exact periods of time during which he was exposed to coal dust while working on the projects, for as we have seen, in order to be classified a miner he had to be exposed to coal dust during one year of his employment.

On this point the evidence before the ALJ included evidence from Seibert himself and from the two principles of R & H. John Rednour, the president of R & H, in a letter dated May 5, 1980, listed the specific projects on which it had employed Mr. Seibert, acknowledging that it did not have a personnel file on Mr. Seibert and concluding that

[t]o our knowledge, Mr. Seibert was not exposed to coal dust during his course of employment with R. & H. Steel Buildings, Inc. We base this on the fact that most of our construction is new construction where coal is not being mined. Mr. Seibert has never worked for R. & H. Steel on any type of underground construction in a coal mine. After reviewing the individual projects that Mr. Seibert has worked on for R. & H. Steel Buildings, we have not found any conditions that would suggest that he was exposed to coal dust.

At a hearing on June 26, 1986, Douglas W. Higgerson, a 50-per-cent owner of R & H Construction Company and Rednour's partner, testified that, in general, Seibert was not exposed to coal dust while employed for R & H. However, notably, Higgerson admitted that Seibert could have been exposed for short periods of time. Seibert himself testified that, at several of the projects he worked on for R & H, coal mines were in operation for at least part of the time he was present and that he was exposed to coal dust during those times.

Both Seibert and Higgerson testified regarding coal dust exposure at several specific work sites, testimony which we feel obliged to catalog briefly. First, Seibert testified that during the last 30 days of his work at Freeman United Coal's Crown # 2 Mine in Farmersville, Illinois, the mine was in operation and there was coal dust. On the other hand, Higgerson's testimony was that "we know of no coal being around anywheres near close at that particular time."

Similarly, Seibert testified that during his entire time at Old Ben Coal Company's Mine # 24 in Benton, Illinois, which he estimated to be 3 to 4 months, the mine was in operation and that he worked no farther than a football field away from the mine. But Higgerson testified that Seibert's work site was approximately 2 miles away from the coal mine and that "there was no coal there whatsoever that we know of." Rednour acknowledged that Seibert worked 52.5 days at Old Ben's Mine # 24.

Seibert says he worked for 8 months at Inland Steel Coal Company's Mine # 2 in McLeansboro, Illinois, and explained that he had coal dust exposure at this site for "a good thirty days," and, further, that the exposure came from a coal preparation plant which watered down its coal and was located 300 yards away from his work site. Rednour's letter documents a total of 145 days of employment at this site in three different stints.

About a month before he left employment at Freeman United Coal Mine's Orient # 4 Mine in Corinth, Illinois, the coal mine started operation and coal dust "was just flying around," according to Seibert. Higgerson, on the other hand, testified that Seibert worked "miles" away from any...