Brandywine Explosives & Supply v. Dir., Office of Workers' Comp. Programs

• Decision Date: 15 June 2015
• Docket Number: No. 14–3672.,14–3672.
• Parties: BRANDYWINE EXPLOSIVES & SUPPLY ; Kentucky Employers Mutual Insurance, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS ; Richard Dean Kennard, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

790 F.3d 657

BRANDYWINE EXPLOSIVES & SUPPLY ; Kentucky Employers Mutual Insurance, Petitioners

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS ; Richard Dean Kennard, Respondents.

No. 14–3672.

United States Court of Appeals, Sixth Circuit.

Argued: March 6, 2015.

Decided and Filed: June 15, 2015.

ARGUED:Mark E. Solomons, Greenberg Traurig, LLP. Washington, D.C., for Petitioners. Rebecca J. Fiebig, United States Department of Labor, Washington, D.C., for Federal Respondent. Evan B. Smith, Appalachian Citizens' Law Center, Whitesburg, Kentucky, for Respondent Kennard. ON BRIEF:Mark E. Solomons, Laura Metcoff Klaus, Greenberg Traurig, LLP. Washington, D.C., for Petitioners. Sean G. Bajkowski, Rita A. Roppolo, United States Department of Labor, Washington, D.C., for Federal Respondent. Evan B. Smith, Appalachian Citizens' Law Center, Whitesburg, Kentucky, for Respondent Kennard.

Before: GRIFFIN and STRANCH, Circuit Judges; STEEH, District Judge.^*

OPINION

JANE B. STRANCH, Circuit Judge.

Brandywine Explosives & Supply, along with its workers' compensation insurer, seeks review of the findings by an Administrative Law Judge (ALJ) that its former employee Richard Kennard is entitled to benefits under the Black Lung

Benefits Act, as amended, 30 U.S.C. §§ 901, et seq. As described below, the findings were supported by substantial evidence. We accordingly DENY the petition for review.

I. FACTS

In August 2009, Kennard filed for black lung

benefits. He underwent a number of medical tests and examinations. After the claims examiner initially recommended that his claim be denied, he sought a hearing before the Department of Labor Office of Administrative Law Judges. The ALJ concluded that Kennard was entitled to a rebuttable presumption that he had pneumoconiosis and that the disease caused his total disability because he had worked in conditions that were substantially similar to those in an underground mine. The ALJ further held that Brandywine successfully rebutted the presumption that Kennard had clinical pneumoconiosis. The employer failed, however, to rebut the presumption of legal pneumoconiosis or the presumption that Kennard's disability was caused by his employment in a coal mine. Brandywine appealed to the Benefits Review Board, arguing that the 15–year presumption should not apply to Kennard and, if the presumption did apply, the company had successfully rebutted it.

Between 1977 and 2009, Kennard worked for more than 21 years as a blaster on strip mines, sometimes directly for a coal company and sometimes for contractors. At the administrative hearing and in a deposition, Kennard testified about the environmental conditions of his blasting work:

Q: So, was there any rock dust or coal dust that you were exposed to?

A: Yeah, plenty of it. You couldn't get away from it. Most time, you'd be right on the shot. You didn't have an air conditioner. You just had to work right there close to it. All the dust was flying and you was breathing it.

....

There's a lot of dust flying and it wasn't self-contained. I mean, [the drill cover] couldn't contain all of it. You got some coming out.

....

Q: And whenever you would blast the holes in which were drilled, what would happen then?

A: A whole lot of dust. Dust would be flying because you're putting off a charge in the ground and you got a whole lot of dust comes in the air.

Q: Was that mainly rock dust or coal dust or—

A: Rock dust, coal dust, everything you could get.

....

Whatever was in the ground. If you're drilling through little coal seams, sometimes you'd drill through little seams five or six inches thick and then when you shoot that, it's all like a big cloud of smoke.

Tr. at 17:8–13, 17–19; 18:1–7, 12–15.

Q: And doing the blasting aspect of that job would you be exposed to coal, rock, sand or other types of dust?

A: Yes. Exposed to you know rock dust, coal dust and everything you know.

Q: Obviously though when the shot is set off you are well away from that area?

A: Yeah, but you have dust to contend with there because it takes so long to get back you know and get away from it. Do you know what I'm saying?

Q: Do they not wait before they go back in to check after a shot until it's settled?

A: There's still a lot of just in the air just floating in the air. It would be like two hours before you completely settle it on the ground.

Q: And would you be the one who would typically the first one to go back?

A: Yes, the blaster always does that and calls the all clear signals.

Kennard Dep., DX 26 at 16:19–17:15. Kennard performed his work immediately before the main coal production began at a given site.

Kennard also has a significant history of smoking—at least 60 pack-years. The smoking gave him cancer

in his right lung, and the lung was removed. He also experiences shortness of breath (dyspnea), coughing, and sleep apnea. His treating physician diagnosed him with Chronic Obstructive Pulmonary Disorder (COPD). His breathing is extremely limited at approximately 25% of the expected level for a man his age, and he has significant trouble moving around, especially without external oxygen.

II. STATUTORY AND REGULATORY BACKGROUND

A. General Framework

The Black Lung

Benefits Act (BLBA) provides benefits to coal miners who have become totally disabled due to pneumoconiosis resulting from their exposure to coal-mine dust. See 20 C.F.R. § 718.204(a). To establish entitlement to benefits, a miner who files a claim must prove (1) that he has pneumoconiosis, (2) that the pneumoconiosis arose out of coal mine employment, (3) that he is totally disabled, and (4) that the disability was due to pneumoconiosis. 20 C.F.R. § 725.202(d)(2). The regulations provide for proof of these elements by lay evidence, medical evidence, and the application of statutorily created presumptions. 20 C.F.R. §§ 718.202 –205.

Pneumoconiosis

is the technical term for lung disease caused by exposure to dust, commonly called Black Lung Disease. Under the statute, pneumoconiosis is defined broadly as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b). The implementing regulations further clarify that there are two forms of pneumoconiosis for the purposes of the BLBA: clinical and legal pneumoconiosis. Clinical pneumoconiosis refers to a specific set of enumerated diseases, while legal pneumoconiosis “is a broader and less definite term that refers to any chronic lung disease that was caused in this instance by exposure to coal [-mine] dust.” Central Ohio Coal Co. v. Dir., Office of Workers' Comp. Programs, 762 F.3d 483, 486 (6th Cir.2014) (emphasis in original); see also 20 C.F.R. § 718.201(a).

The implementing regulations also establish the degree of causation required for a miner's respiratory disability to be considered “due to pneumoconiosis:”

A miner shall be considered totally disabled due to pneumoconiosis

if pneumoconiosis... is a substantially contributing cause of the miner's totally disabling respiratory or pulmonary impairment. Pneumoconiosis is a “substantially contributing cause” of the miner's disability if it:

(i) Has a material adverse effect on the miner's respiratory or pulmonary condition; or

(ii) Materially worsens a totally disabling respiratory or pulmonary impairment which is caused by a disease or exposure unrelated to coal mine employment.

20 C.F.R. § 718.204(c)(1).

This case concerns a rebuttable presumption for certain miners who worked in coal mines for at least 15 years and have a totally disabling respiratory impairment and are not otherwise eligible for a presumption of entitlement. These miners receive “a rebuttable presumption that such miner is totally disabled due to pneumoconiosis.” 30 U.S.C. § 921(c)(4). To qualify for the presumption, the 15 years must have been spent either in underground coal mines or a surface mine such that the miner's conditions of employment “were substantially similar to conditions in an underground mine.” Id. The miner bears the burden of establishing his entitlement to the presumption, but once he is found eligible, “the burden of production and persuasion lies on the employer ... to rebut the presumption of disability due to pneumoconiosis.” Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 479 (6th Cir.2011).

The presumption was first added to the BLBA in 1972. See Black Lung Benefits Act of 1972, Pub.L. 92–303 § 4(c), 86 Stat. 150, 154 (1972). In 1981, Congress eliminated the presumption. Black Lung

Benefits Amendments of 1981, Pub.L. 97–119 § 202(b)(1), 95 Stat. 1635, 1644 (1981). Congress reinstated the presumption in 2010, making it retroactive to claims filed after January 1, 2005 that were pending on or after March 23, 2010. See Patient Protection and Affordable Care Act (“PPACA”), Pub.L. No. 111–148 § 1556, 124 Stat. 119, 260 (2010).

B. The Revised Regulation

While Kennard's case was pending before the Benefits Review Board, the Department of Labor promulgated a revised regulation on the 15–year presumption. See Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act, 78 Fed.Reg. 59,102 (2013). The former regulation restated the statutory language that addressed which surface miners are eligible for the presumption, but the new regulation states that “[t]he conditions in a mine other than an underground mine will be considered ‘substantially similar’ to those in an underground mine if the claimant demonstrates that the miner was regularly exposed to coalmine dust while working there.” 20 C.F.R. § 718.305(b)(2).

With regard to rebuttal, the former regulation stated: “The presumption may be rebutted only by establishing that the miner does not, or did not have pneumoconiosis

, or that his or her respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.” 20 C.F.R. § 718.305(a) (eff. prior to Oct. 25, 2013). The new regulation states:

In a claim filed by a miner, the party opposing entitlement may rebut the

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