Ratliff v. Appleton & Ratliff Coal Corp., BRB 14-0415 BLA
| Decision Date | 30 September 2015 |
| Docket Number | BRB 14-0415 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | DEWEY RATLIFF Claimant-Respondent v. APPLETON & RATLIFF COAL CORPORATION and RELIANCE IN LIQUIDATION Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Granting the Claimant's Request for Modification, Awarding Benefits of Alice M. Craft Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams & Reynolds) Norton, Virginia, for claimant.
H Brett Stonecipher and Mark E. Yonts (Fogle Keller Purdy PLLC), Lexington, Kentucky, for employer/carrier.
Jeffrey S. Goldberg (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, Associate Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Employer/carrier (employer) appeals the Decision and Order Granting the Claimant's Request for Modification, Awarding Benefits (2010-BLA-05320) of Administrative Law Judge Alice M. Craft with respect to a claim filed pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§901-944 (BLBA).[1] The administrative law judge found that claimant established at least twenty years of underground coal mine employment and that employer was properly named as the responsible operator. She adjudicated this claim pursuant to the regulations contained in 20 C.F.R Part 718, and determined that claimant established the existence of simple and complicated pneumoconiosis arising out of coal mine employment, thereby invoking the irrebuttable presumption of total disability due to pneumoconiosis at 20 C.F.R. §718.304. Based on this determination, the administrative law judge granted claimant's request for modification pursuant to 20 C.F.R. §725.310, finding that to do so would render justice under the Act. Accordingly, the administrative law judge awarded benefits.
On appeal, employer asserts that the administrative law judge erred in finding that it is the properly designated responsible operator. In addition, employer argues that the administrative law judge improperly limited the evidence admitted on modification, and erred in discrediting Dr. Wheeler's negative x-ray interpretations concerning the existence of complicated pneumoconiosis. Claimant responds, asserting that employer is the responsible operator and urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), also responds, contending that the administrative law judge properly found that employer is the responsible operator. The Director further asks the Board to reject employer's arguments that the administrative law judge violated employer's due process rights in applying the evidentiary limitations on modification, and hold that the administrative law judge's decision to discredit Dr. Wheeler's x-ray interpretations does not require remand.[2]
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is supported by substantial evidence, is rational, and is in accordance with applicable law.[3] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
The administrative law judge initially found that no party contested the fact that employer is claimant's last coal mine employer for a cumulative period of one year. Decision and Order at 6. She then considered employer's argument that, because its insurer, Reliance Insurance Company, has been liquidated, the Black Lung Disability Trust Fund (Trust Fund) is liable for any benefits awarded. Id. The administrative law judge determined, however, that employer did not establish that it is unable to assume liability, or that payments by the Kentucky Insurance Guaranty Association (KIGA), which is now acting on employer's behalf, have exceeded the statutory limits on its liability. Id. Accordingly, the administrative law judge determined that employer is the properly designated responsible operator. Id.
Employer contends that, when an insurer is deemed insolvent, the Kentucky Insurance Guaranty Association Act (Kentucky Act) mandates that KIGA cannot cover insurance claims arising under the Longshore and Harbor Workers' Compensation Act (LHWCA), or involving insurance provided by a government or governmental agency. Employer reasons that, because portions of the BLBA are derived from the LHWCA, KIGA appropriately denied coverage of the present claim. Employer further maintains that, for the same reason, the exclusion of coverage for claims created by a legislative act applies to the present claim. Additionally, employer contends that the Trust Fund “is necessarily a de jure and de facto guarantor of operators' insurance policies, ” which absolves KIGA from liability in this case. Employer's Reply Brief at 3.
Claimant responds, asserting that employer is the properly designated responsible operator and that the administrative law judge correctly found that KIGA is not excluded from liability. The Director also responds, contending that employer's interpretation of the Kentucky Act is incorrect and that the administrative law judge properly found that employer is the responsible operator in this case.
After reviewing the parties' arguments and the relevant facts, we affirm the administrative law judge's determination that employer is the properly designated responsible operator, as it is supported by substantial evidence and is in accordance with law. By its terms, the Kentucky Act excludes “ocean marine insurance” that covers “loss, damage, or expense arising out of or incident to ownership, operation, chartering, maintenance, use, repair, or construction of any vessel, craft, or instrumentality in use in ocean or inland waterways . . . .” KY Rev. Stat. §304.36-050(10) (2006) (West). In contrast, insurance obtained to secure liability under the BLBA covers benefits payable based on a determination that the miner is totally disabled due to pneumoconiosis arising out of coal mine employment or that the miner's death was caused by pneumoconiosis arising out of coal mine employment. 20 C.F.R. §726.203(a), (c). The mere fact that the BLBA contains certain provisions also contained in the LHWCA does not alter the BLBA's status as a distinct statute that is not subject to the Kentucky Act's exclusion of coverage for “ocean marine insurance.”[4] See KY Rev. Stat. §§304.36-030(1(f)), 304.36-050(10(c)).
There is also no merit to employer's argument that KIGA's liability is precluded by the exclusion from coverage of “[a]ny insurance provided, written, reinsured, or guaranteed by any government or governmental agencies.” KY Rev. Stat. §304.36-030(1(h)) (2006) (West). In the current case, employer's insurance policy was provided by, and written for, a nongovernmental commercial entity pursuant to the BLBA's requirement that coal mine operators purchase insurance or qualify as a self-insurer. See 30 U.S.C. §933(a), as implemented by 20 C.F.R. §726.1(a), (b). Moreover, we are not persuaded that the Trust Fund's payment of benefits, when there is no viable responsible operator or insurer, is equivalent to the Trust Fund insuring, guaranteeing, or reinsuring a mine operator against liability for the payment of federal black lung benefits.[5] 26 U.S.C. §9501(d); 20 C.F.R. §725.495(a)(3); see Energy West Mining Co. v. Oliver, 555 F.3d 1211, 1214, 24 BLR 2-155, 2-159 (10th Cir. 2009). We affirm, therefore, the administrative law judge's rational finding that KIGA is not relieved from liability for benefits in this case.[6]
At the hearing on June 20, 2012, the administrative law judge granted employer's motion to substitute Dr. Wheeler's negative interpretation of the March 16, 2010 x-ray, for Dr. Broudy's interpretation of the same x-ray, which was positive for simple pneumoconiosis only. Hearing Transcript at 8, 10; Employer's Exhibit 3. Employer's revised evidence summary form, submitted subsequent to the hearing, reflected this substitution. In her Decision and Order, the administrative law judge noted that employer did not designate Dr. Broudy's positive reading on its evidence summary form and, therefore, she did not include it in her weighing of the x-ray evidence under 20 C.F.R. §718.201(a)(1). Decision and Order at 29.
Employer argues that the administrative law judge erred in failing to consider Dr. Broudy's x-ray reading on modification. Employer maintains that, because 20 C.F.R §725.310(b) limits the evidence on modification to only one additional x-ray interpretation, “it becomes so restrictive that it violates due process.” Employer's Brief at 16 (unpaginated). Employer also alleges that this limitation does not acknowledge that, although a modification proceeding must be initiated within one year of the last decision, several years might have passed during the litigation of the case, making employer's evidence outdated. Employer further argues there is no rational justification for limiting the evidence permitted in a modification proceeding to half of that allowed in the initial proceeding. Finally, employer contends, in its reply brief, that the due process rights of a party are not “protected and advanced by placing an additional burden on them to prove good cause before substantive and relevant evidence can be...
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