Barnes v. Cowin & Co., Inc.
| Decision Date | 29 February 2012 |
| Docket Number | BRB 11-0324 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | NORMAN C. BARNES Claimant-Respondent v. COWIN & COMPANY, INCORPORATED Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Janice K Bullard, Administrative Law Judge, United States Department of Labor.
Abigail P. van Alstyne (Quinn, Connor, Weaver, Davies & Rouco, LLP), Birmingham, Alabama, for claimant.
Mary Lou Smith (Howe, Anderson & Steyer, P.C.), Washington D.C., for employer.
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: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.
DECISION AND ORDER
DOLDER, Chief Administrative Appeals Judge
Cowin & Company (employer) appeals the Decision and Order Awarding Benefits (2009-BLA-05923) of Administrative Law Judge Janice K. Bullard rendered on a miner's claim filed pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) () (the Act). The administrative law judge found that claimant was a miner within the meaning of the Act, and credited him with 21.26 years of coal mine employment. The administrative law judge further found that employer, although not a mine operator, was the properly named responsible operator, as it was an independent contractor performing services or construction work at a mine site pursuant to 20 C.F.R. §725.491(a)(1). The administrative law judge next addressed the applicability of amended Section 411(c)(4) of the Act, which provides, in pertinent part, a rebuttable presumption of totally disabling pneumoconiosis if claimant establishes that the miner had at least fifteen years of “qualifying” coal mine employment, and if the evidence establishes the presence of a totally disabling respiratory impairment. [1] 30 U.S.C. §921(c)(4). “Qualifying” coal mine employment has been defined as work in an underground coal mine or in coal mining employment in conditions that are substantially similar to those in an underground mine. See Director, OWCP v. Midland Coal Co. [Leachman], 855 F.2d 509, 512 (7th Cir. 1988). The administrative law judge found that, because claimant's work as a mechanic was primarily underground and exposed him to the same conditions as those of a coal miner whose duties were to extract coal, claimant had established at least fifteen years of “qualifying” coal mining pursuant to amended Section 411(c)(4). Additionally, the administrative law judge found that claimant established a totally disabling respiratory impairment pursuant to 20 C.F.R. §718.204(b). Consequently, the administrative law judge found that claimant was entitled to invocation of the rebuttable presumption of total disability due to pneumoconiosis pursuant to amended Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4). The administrative law judge further found that employer did not rebut the Section 411(c)(4) presumption because she found that the medical opinion evidence established the existence of legal pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a)(4) and 718.203(b), and total disability due to pneumoconiosis at 20 C.F.R. §718.204(c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer challenges the applicability of Section 411(c)(4) to this claim, arguing that the record does not support a finding of fifteen years of “qualifying” coal mine employment. Employer further contends that the administrative law judge erred in finding that the medical evidence is sufficient to establish a totally disabling respiratory impairment at Section 718.204(b). Additionally, employer contends that the administrative law judge erred in finding that the medical opinion evidence was sufficient to establish the existence of legal pneumoconiosis pursuant to Section 718.202(a)(4). Employer also challenges the constitutionality of amended Section 411(c)(4), as applied to employer, arguing that it is impermissibly retroactive and violates employer's due process rights. In response, claimant urges affirmance of the administrative law judge's award of benefits, as supported by substantial evidence. The Director, Office of Workers' Compensation Programs (the Director), in a limited response, urges the Board to reject employer's contention that amended Section 411(c)(4) is unconstitutional, as violative of employer's due process rights. Additionally, the Director urges the Board to reject employer's contention that amended Section 411(c)(4) does not apply in this case because employer is not a mine operator. The Director does not address employer's arguments on the merits of entitlement. [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 rational, supported by substantial evidence, and 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).
Constitutionality of Section 411(c)(4)
We first address employer's challenges to the administrative law judge's application of amended Section 411(c)(4). Employer contends that amended Section 411(c)(4) is unconstitutional because it is impermissibly retroactive. Employer further contends that the Patient Protection and Affordable Care Act (PPACA) is unconstitutional and has been struck down by a federal district court in the State of Florida. Employer also contends that amended Section 411(c)(4) cannot apply in cases involving coal mine construction workers. Specifically, employer contends that, because non-coal mining companies are not required to carry the same insurance endorsement as coal mine companies, the Board's decision in Mathews v. United Pocahontas Coal Co., 24 BLR 1-193, 1-199 (2010), recon. denied, BRB No. 09-0666 BLA (Apr. 14, 2011) (Order)(unpub.), appeal docketed, No. 11-1620 (4th Cir. June 13, 2011), is not controlling in this case. In Mathews, the Board held that Section 1556 of the PPACA did not constitute an unlawful taking of employer's property, because an employer through its insurer, since 1974, is on notice that it may be liable for any obligations arising from amendments to the Act, as the federal black lung benefits program has required each policy issued to cover liabilities under the Act to include an insurance endorsement, [4]pursuant to 20 C.F.R. §726.203(a). These contentions lack merit.
Initially, we reject employer's contention that the entire PPACA, which contains amended Section 411(c)(4), has been declared unconstitutional. The lower court decision cited by employer, Florida ex rel. Bondi v. U.S. Dept. of Health and Human Services, 780 F.Supp.2d 1256 (N.D. Fla. 2011), declaring the individual mandate of the PPACA unconstitutional, has no effect in this case, because an order was issued by the district court staying that decision, pending appeal. Florida ex rel. Bondi v. U.S. Dept. of Health and Human Services, 780 F.Supp.2d 1307 (N.D. Fla. 2011). Additionally, the United States Court of Appeals for the Eleventh Circuit, within whose jurisdiction this case arises, severed the individual mandate of the PPACA from the remainder of the statute. See Florida ex rel. Bondi v. U.S. Dept. of Health and Human Services, 648 F.3d 1235 (11th Cir. 2011).
Further, we agree with the Director that employer misreads Mathews, regarding the importance of the mandatory insurance endorsement to the Board's overall holding on the issue of the constitutionality of the amendments. [5] The Director contends that the Board, in Mathews, in concluding that retroactive application of amended Section 411(c)(4) did not violate the Takings Clause of the Fifth Amendment, relied, in part, on the fact that an insurance endorsement is required to be contained in insurance policies pursuant to 20 C.F.R. §726.203(a). Director's Letter Brief at 2. However, as the Director further states, this mandatory endorsement “played no role in the Board's holding that retroactive application of the amendment did not violate the Due Process [C]lause.” Id. Therefore, the Director contends that, because employer only addresses the retroactive application of amended Section 411(c)(4) based on the Due Process Clause, and not on the Takings Clause, as addressed in Mathews, employer's argument regarding the insurance endorsement is inapposite. Moreover, we reject the remainder of employer's general contentions that amended Section 411(c)(4) is impermissively retroactive for the same reason the Board rejected substantially similar arguments in Mathews. See also Keene v. Consolidation Coal Co., 645 F.3d 844, 24 BLR 2-385 (7th Cir. 2011).
Application of Amended Section 411(c)(4)
Length of Coal Mine Employment
In determining whether claimant established fifteen years of “qualifying” coal mine employment under amended Section 411(c)(4), the administrative law judge found that the record established that most of claimant's coal mine employment involved his work as a mechanic, underground, in coal mine construction. Decision and Order at 13. The administrative law judge further found that, in the context of that employment, claimant spent a majority of his work day underground, only leaving occasionally to retrieve parts or supplies. Id. Consequently, the...
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