Barr v. Fairfield Southern Co.
| Decision Date | 27 January 2021 |
| Docket Number | 18-0567 BLA-A,BRB 18-0567 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BILLIE B. BARR Claimant-Petitioner Cross-Respondent v. FAIRFIELD SOUTHERN COMPANY Employer-Respondent Cross-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order Denying Benefits on Modification of Lee J. Romero, Jr., Administrative Law Judge, United States Department of Labor.
John R. Jacobs and J. Thomas Walker (Maples Tucker & Jacobs LLC), Birmingham, Alabama, for Claimant.
M Keith Gann and M. Brent Almond (Huie, Fernambucq & Stewart, LLP), Birmingham, Alabama, for Employer.
Before: BUZZARD, ROLFE, and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Claimant[1] appeals and Employer cross-appeals Administrative Law Judge Lee J. Romero Jr.'s Decision and Order Denying Benefits on Modification (2017-BLA-05125) rendered on a claim filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2018) (Act). This case involves Claimant's request for modification of the previous denial of the Miner's subsequent claim filed on June 20, 2011.[2]
The primary issue in this appeal is whether Claimant established that the Miner had at least fifteen years of qualifying coal mine employment to invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).[3] In a Decision and Order Denying Benefits dated August 15, 2014, Administrative Law Judge Adele Higgins Odegard considered Claimant's assertion that the Miner's thirty-two years as a rail transport worker, first for U.S. Steel Corporation (U.S. Steel) and later for Fairfield Southern Company (Fairfield or Employer), constituted the work of a coal miner. Director's Exhibit 73. Judge Odegard credited the Miner with no more than fourteen years and four months of coal mine employment with U.S. Steel, which she found occurred at an underground mine. Id. While she credited the Miner with an additional three years of coal mine employment at Fairfield, she found it did not occur either at an underground coal mine or in conditions substantially similar to those in an underground mine and, thus, did not constitute qualifying coal mine employment. Id. Therefore, she concluded Claimant did not invoke the Section 411(c)(4) presumption. Id.
Considering whether Claimant established entitlement to benefits without the aid of any presumption, [4] Judge Odegard found the new evidence established clinical pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a), 718.203(b) and therefore a change in an applicable condition of entitlement at 20 C.F.R. §725.309(c). Id. She further found, based on all the evidence, Claimant established the Miner had a totally disabling respiratory impairment at 20 C.F.R. §718.204(b)(2), but failed to establish his disability was due to pneumoconiosis at 20 C.F.R. §718.204(c). Id. Consequently, Judge Odegard denied benefits.
Both Claimant and Employer filed motions for reconsideration. In a Decision and Order on Reconsideration dated October 3, 2014, Judge Odegard denied their respective motions. Director's Exhibit 77.
Claimant filed a request for modification. Director's Exhibits 79. On September 28, 2015, the district director issued a Proposed Decision and Order denying Claimant's request for failure to establish a totally disabling respiratory impairment and, therefore, found Claimant failed to invoke the Section 411(c)(4) presumption that the Miner was totally disabled due to pneumoconiosis.[5] Director's Exhibit 96. The district director further found the newly submitted evidence on modification did not establish the existence of either clinical or legal pneumoconiosis.[6] Id. Claimant filed a second request for modification on April 15, 2016. Director's Exhibit 97.
In his Decision and Order dated August 3, 2018, that is the subject of this appeal and cross-appeal, Administrative Law Judge Lee J. Romero, Jr. (the administrative law judge) determined granting modification would render justice under the Act and thus reopened the record to consider modification.[7] He found Judge Odegard erred in calculating the duration of the Miner's employment with U.S. Steel, and further erred in finding all of that work was that of a miner. He found no mistake, however, in Judge Odegard's ultimate determination that the Miner had less than fifteen years of qualifying coal mine employment and thus could not invoke the Section 411(c)(4) presumption. He also found that because Claimant did not establish complicated pneumoconiosis at 20 C.F.R. §718.304, she could not invoke the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3). Considering the claim without the aid of the presumptions, he found Claimant established the Miner had clinical pneumoconiosis and a totally disabling respiratory or pulmonary impairment, but failed to establish the Miner's total disability was due to pneumoconiosis and denied benefits.
On appeal, Claimant argues the administrative law judge erred in finding the Miner did not have at least fifteen years of qualifying coal mine employment necessary to invoke the Section 411(c)(4) presumption. Employer responds in support of the denial of benefits. Claimant filed a reply brief, reiterating her contentions. The Director, Office of Workers' Compensation Programs, has not filed a brief.[8]
On cross-appeal, Employer argues the administrative law judge erred in determining any of the Miner's work as a rail transport worker constituted that of a "miner" under the Act. Employer also argues the administrative law judge erred in finding the Miner had clinical pneumoconiosis. Claimant responds, urging affirmance of the administrative law judge's findings that the Miner worked as a "miner" and had clinical pneumoconiosis. Employer filed a reply brief, reiterating its contention the Miner did not perform any qualifying coal mine employment.
The Benefits Review Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[9] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
Because Claimant established the Miner had a totally disabling respiratory or pulmonary impairment, she is entitled to the Section 411(c)(4) presumption if she establishes the Miner had at least fifteen years of qualifying coal mine employment. 30 U.S.C. §921(c)(4). Under the Act:
The term miner means any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal. Such term also 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.
30 U.S.C. §902(d); see 20 C.F.R §§725.101(a)(19), 725.202(a).[10] The United States Court of Appeals for the Eleventh Circuit has held the definition of a "miner" comprises a "situs" requirement (i.e., that a miner worked in or around a coal mine or coal preparation facility) and a "function" requirement (i.e., that a miner worked in the extraction or preparation of coal). See Fox v. Director, OWCP, 889 F.2d 1037 (11th Cir. 1989); Baker v. United States Steel Corp., 867 F.2d 1297 (11th Cir. 1989); Foreman v. Director. OWCP, 794 F.2d 569 (11th Cir. 1986). To satisfy the function requirement, the work must be integral or necessary to the extraction or preparation of coal and not merely incidental or ancillary. See Fox, 889 F.2d at 1043; Baker, 867 F.2d at 1298; see also Tobin v. Director, OWCP, 8 BLR 1-115 (1985).
The regulation at 20 C.F.R. §725.202, implementing 30 U.S.C. §902(d), also includes special provisions for coal mine transportation workers. 20 C.F.R. §725.202(b). Transportation workers are considered to be "miners" under the Act if they are exposed to coal mine dust as a result of employment in or around a coal mine or coal preparation facility. 20 C.F.R. §725.202(b). Such workers are entitled to a rebuttable presumption that they were exposed to coal mine dust during all periods of such employment. 20 C.F.R. §725.202(b)(1). The presumption may be rebutted 1) by evidence which demonstrates that the individual was not regularly exposed to coal mine dust during his or her work in or around a coal mine or coal preparation facility; or 2) by evidence which demonstrates that the individual did not work regularly in or around a coal mine or coal preparation facility. 20 C.F.R. §725.202(b)(2)(i), (ii).
The Miner worked as a rail transport worker from 1965 to 1997 for U.S. Steel and Fairfield. From 1965 until 1983, he worked for U.S. Steel delivering empty rail cars to the preparation plant at U.S. Steel's Concord Mine, an operational underground mine, to be loaded with coal extracted from it. He then positioned or spotted the cars for loading, oversaw the loading, and delivered the coal by rail to various locations elsewhere. Director's Exhibit 56 at 20-28, 39; Director's Exhibits 4-6.
Around 1983, the Concord Mine closed its underground mining operation and by 1984 the site was operating only as a preparation plant. About the same time, U.S. Steel transferred its internal rail operations to Fairfield and the Miner went to work for them, still as a rail transport worker. From approximately 1984 to 1987 he performed the same job for Fairfield as he had for U.S. Steel, delivering empty rail cars to the Concord...
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