Elkins v. Trojan Mining, Inc., BRB 10-0265 BLA
| Decision Date | 28 February 2011 |
| Docket Number | BRB 10-0265 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | HARVEY G. ELKINS Claimant-Respondent v. TROJAN MINING, INCORPORATED and OLD REPUBLIC INSURANCE COMPANY 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UNPUBLISHED OPINION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 - Award of Benefits of Thomas F Phalen, Jr., Administrative Law Judge, United States Department of Labor.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer/carrier.
Helen H. Cox (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: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Trojan Mining, Incorporated (employer) appeals the Decision and Order - Award of Benefits (2007-BLA-5308) of Administrative Law Judge Thomas F. Phalen, Jr., rendered on a miner's claim [1]filed pursuant to 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). In a Decision and Order dated December 17, 2009, the administrative law judge credited claimant with twenty-six years of coal mine employment, as stipulated by the parties, and adjudicated this claim pursuant to 20 C.F.R. Part 718. The administrative law judge found that employer was properly designated the responsible operator, and that the evidence was sufficient to establish the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4) and total disability due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b)(2), (c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer contends that the administrative law judge erred in finding that it is the responsible operator because it did not employ claimant for a cumulative period of one year. On the merits, employer challenges the administrative law judge's determination regarding the length and extent of claimant's smoking history. Employer further argues that the administrative law judge erred in weighing the medical opinions as to the issues of the existence of legal pneumoconiosis, pursuant to 20 C.F.R. §718.202(a)(4), and total disability, pursuant to 20 C.F.R. §718.204(b)(2)(iv). Claimant has not filed a response brief. The Director, Office of Workers' Compensation Programs (the Director), has filed a letter in response to employer's appeal, asserting that the administrative law judge properly found that employer was the responsible operator. The Director, however, declines to address employer's arguments on the merits of claimant's entitlement to benefits.
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. [2] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
We first address employer's argument that it has been erroneously identified as the responsible operator in this case. If a miner worked for more than one coal mine operator during his career, the responsible operator is the most recent coal mine operator to employ the miner, provided that the operator qualifies as a “potentially liable operator.” 20 C.F.R. §725.495. The regulation at 20 C.F.R. §725.494 sets forth five criteria for identifying a potentially liable operator: (i) the miner's disability or death arose out of employment with that operator; (ii) the operator, or any person with respect to which the operator may be considered a successor operator, was an operator for any period after June 30, 1973; (iii) the miner was employed by the operator, or any person with respect to which the operator may be considered a successor operator, for a cumulative period of not less than one year; (iv) the miner's employment included at least one working day after December 31, 1969; and (v) the operator is financially capable of assuming liability for the claim. 20 C.F.R §725.494(a)-(e).
From a procedural standpoint, after a claim is filed, the district director determines, based on employment information provided by the miner, whether there is a potentially liable operator pursuant to 20 C.F.R. §725.494. The district director issues a Notice of Claim to each potentially liable operator he identifies, requesting that each operator either accept or contest liability for benefits. 20 C.F.R. §725.407(b), (c). After the time for responding to the Notice of Claim expires, the district director makes preliminary findings, contained in the Schedule for Admission of Evidence, as to the miner's entitlement and the identity of responsible operator. 20 C.F.R. §725.410(a). The named responsible operator then has thirty days to respond and/or submit evidence accepting or rejecting the district director's findings. 20 C.F.R. §725.412(a)(1). Based on any additional evidence submitted, the district director issues a Proposed Decision and Order containing his final determinations on entitlement and the identity of the responsible operator. 20 C.F.R. §725.418. Although the district director bears the initial burden of proving that a coal mine operator qualifies as a potentially liable operator, once that determination is made, the burden shifts to employer to present evidence to show that it is not liable for benefits.
In this case, claimant submitted a work history form in conjunction with his application for benefits that identified his employer as “Trogen [sic] Mine, Elkhorn Creek, [Kentucky], ” from 1976-1990. Director's Exhibit 3. Employer provided a written statement on company letterhead, dated September 11, 1991, in which it indicated:
Director's Exhibit 5. The letter also identified, claimant's job classifications as: “General labor, shuttle car operator, roof driller, roof bolter and mobile equipment operator.” Id.
On February 6, 2006, the district director issued a Notice of Claim to employer advising that it had been named as a potentially liable operator. Director's Exhibit 23. Employer controverted the claim but did not submit any evidence pertaining to the responsible operator issue. Director's Exhibits 24, 25. On June 26, 2006, the district director issued a Schedule for the Admission of Additional Evidence, finding that, while employer did not employ claimant for a cumulative period of one year, [3]the September 11, 1991 letter confirmed that there was a successor relationship between BethEnergy Mines, Sun Glo Coal Company (Sun Glo) and employer, and that claimant had over one year of cumulative employment with Sun Glo. Thus, the district director determined that employer, as a successor operator to Sun Glo, is liable for benefits. Director's Exhibit 26. On October 12, 2006, the district director issued a Proposed Decision and Order, wherein employer was designated the responsible operator pursuant to 20 C.F.R. §§725.494 and 725.495. Director's Exhibit 46. Employer subsequently requested a hearing and the case was assigned to the administrative law judge.
On September 30, 2008, employer filed a motion to dismiss, asserting that the district director did not meet his burden of establishing that it is a potentially liable operator pursuant to 20 C.F.R. §725.494. In his Decision and Order issued on December 17, 2009, the administrative law judge found that employer is the responsible operator, and explained:
Employer asserts on appeal that the administrative law judge erred in relying on the September 11, 1991 letter to establish a successor relationship between it and Sun Glo because “the letter does not elaborate on the relationship, if any between the companies” and “it does not disclose any basis for concluding that Trojan meets any of the criteria necessary to establish such a successor relationship.” Employer's Brief in Support of Petition for Review at 11. Employer notes that the Social Security Administration Statement of Earnings for claimant lists different identification numbers and different addresses for employer and Sun Glo, supporting a conclusion that they were separate corporate entities. Employer further states that “[sharing] book-keeping services does not make two companies the same company nor does it convert one company into a successor of the other.” Id. Finally, employer maintains that claimant...
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